Immigration Detention: Care of Pregnant Women in DHS Facilities
Released: 2020-04-21T00:00:00

Letter

Background

Federal Roles and Responsibilities

Within DHS, ICE is responsible for immigration enforcement and removal operations. This entails, among other duties, identifying, arresting, and detaining foreign nationals for the administrative purpose of facilitating their appearance during removal proceedings, and for processing, and preparing them for removal from the United States, among other things. As such, ICE manages the nation’s immigration detention system, which houses foreign nationals detained while their immigration cases are pending or after being ordered removed from the country. ICE generally has broad discretion in determining whether to detain removable foreign nationals or release them under various conditions, unless the law specifies that detention is mandatory. Additionally, foreign nationals arriving at the U.S. border or a port of entry without valid entry documents and placed into expedited removal proceedings are required to be detained while awaiting an inadmissibility determination and, as applicable, any subsequent credible fear decision. Except in cases where detention is mandatory, ICE may release an individual pending the outcome of removal proceedings and has various release options for doing so, including the Alternatives to Detention program. While foreign nationals are detained, ICE is responsible for providing accommodations and medical care to individuals in detention with special needs or vulnerabilities, such as those who are pregnant. ICE’s December 2017 memo, Identification and Monitoring of Pregnant Detainees, sets forth policy and procedures to ensure pregnant detainees in ICE custody are identified, monitored, tracked, and housed in an appropriate facility.

CBP is a component within DHS and the lead federal agency charged with a dual mission of facilitating the flow of legitimate travel and trade at our nation’s borders while also keeping terrorists and their weapons, criminals and their contraband, and inadmissible foreign nationals out of the country. CBP temporarily holds individuals to complete general processing and determine the appropriate course of action, such as transferring them to a court, jail, prison, or another agency; relocating them into ICE detention facilities; removing them from the country; or releasing them—as CBP has discretion to release individuals with a notice to appear in court. Within CBP, individuals, including pregnant women, could be held by Border Patrol or OFO.

ICE Detention Facility Types, Detention Standards, and Medical Care

ICE detains individuals in both under-72-hour and over-72-hour detention facilities. Detention facilities may be for male only, female only, or both; and some are specifically reserved for family units (also known as family residential centers). ICE uses various types of detention facilities to hold detainees for more than 72-hours. These include ICE owned and operated detention facilities, also known as service processing centers, as well as facilities that ICE oversees but the day-to-day operations are generally run by another entity, as follows: contract detention facilities owned and operated by a private company under direct ICE contract that exclusively houses ICE detainees, facilities owned by state or local government or private entity, operating under an intergovernmental service agreement (IGSA), that exclusively houses ICE detainees or houses ICE detainees and other confined populations, and facilities owned by state or local government or private entity, operating under an intergovernmental agreement (IGA), or contract, with U.S. Marshals Service (USMS), that exclusively houses ICE detainees or houses ICE detainees and other confined populations.

ICE detention facilities are generally required to adhere to one of four sets of detention standards. The detention standards vary depending on the contract or agreement. As we have previously reported, ICE’s detention standards are based on the American Correctional Association’s expected practices and have been updated when ICE identified issues of heightened concern or gaps in agency procedures. Some detention facilities used by ICE are not obligated to adhere to ICE’s detention standards—because, for example, ICE is a rider on the contract and the facility may be held to other standards.

Further, on-site medical care may be directly provided by ICE Health Service Corps (IHSC) or other entities at these detention facilities. IHSC provides direct on-site medical services in 20 ICE facilities authorized to house detainees for over 72 hours. In addition to any applicable detention standards, IHSC staff must also adhere to IHSC policies. At detention facilities that are not staffed with IHSC personnel (non-IHSC facilities), medical care is provided onsite by local government staff or private contractors and overseen by IHSC.

ICE inspects “authorized” detention facilities against detention standards and any applicable IHSC policies. Table 1 details information on each of the detention standards, the number of authorized facilities contractually obligated to each standard, the percent of the average daily population at each, and the presence of IHSC staff.

CBP Facilities, Standards, and Medical Care

CBP operates all of its short-term holding facilities and hold rooms, and does not utilize contract services for the management of individuals in CBP custody. In October 2015, CBP issued its first nationwide standards, which govern CBP’s interaction with detained individuals. The standards include requirements regarding transport, escort, detention, and search provisions, as well as care for “at-risk individuals”, which includes pregnant women.

Given that CBP short-term facilities are intended to hold individuals for no more than 72 hours, CBP historically did not have on-site medical professionals at most of its facilities. However, as a result of surges in unaccompanied minors and families crossing the border, CBP issued a directive in January 2019 titled Interim Enhanced Medical Efforts (January 2019). According to the directive, enhanced medical services were needed to address growing public health concerns and mitigate risk to, and improve care for, individuals in CBP custody along the southwest border. The January 2019 directive was superseded by a December 2019 directive, Enhanced Medical Support Efforts, which also calls for medical support to mitigate risk to, and sustain enhanced medical efforts for persons in CBP custody along the southwest border. A related memo issued by the CBP Commissioner, titled CBP’s Expansion of Existing Medical Services Contracts and Expedited Deployment of Additional Contracted Medical Services Personnel to the Southwest Border, called for the expansion of CBP’s medical services contract to numerous Border Patrol facilities and OFO ports of entry along the southwest border. This effort is discussed later in our report.

DHS Had Over 4,600 Detentions of Pregnant Women from 2016 through 2018 for Different Lengths of Time and In Varying Types of Facilities

About Two-thirds of ICE’s Detentions of Pregnant Women Were for a Week or Less

Number of pregnant women detentions. From calendar year 2016 through 2018, ICE had over 4,600 detentions of pregnant women. The number of detentions decreased from 1,380 in calendar year 2016 to 1,160 in 2017, and then increased to 2,098 in calendar year 2018 (see figure 1).

Of the more than 4,600 detentions of pregnant women from calendar year 2016 through 2018, 32 percent involved pregnant women who were expedited removal cases and were subject to mandatory detention, including those that awaited a credible fear determination. Of the remaining detentions, 49 percent involved pregnant women who were deemed inadmissible and were either awaiting their hearing or an adjudication by an immigration judge, 11 percent involved pregnant women who had a final order of removal, and the remaining detentions (8 percent) involved various other immigration-related circumstances, such as those for which ICE was unable to obtain travel documents. Further, as we reported in December 2019, detentions of non-criminal pregnant women accounted for most of the total detentions of pregnant women each year (ranging from 91 to 97 percent).

Length of detention. From calendar years 2016 through 2018, 68 percent of ICE detentions of pregnant women were for 7 days or less, 22 percent for 8 to 30 days, and 10 percent for more than 30 days, as shown in table 2.

According to ICE officials, individual circumstances of each case dictate how long they detain a pregnant woman. For example, ICE may determine not to release a pregnant woman from ICE custody if her case is adjudicated quickly, she is ordered removed, and she is cleared to travel by a medical professional.

Pregnancy outcomes. Our analysis of ICE data shows that from January 2015 through July 2019, 58 pregnant women in ICE custody experienced a miscarriage, two had an abortion, and one gave birth. Of those, 37 miscarriages and one birth involved women detained at IHSC-staffed facilities at the time of the outcome. Some of these women were in our study population of over 4,600 detentions from calendar years 2016 through 2018, but some were pregnant women detained in 2019.

Most ICE Detentions of Pregnant Women Were at IHSC-Staffed Facilities; and Some Data on Gestation of Pregnancy Were Available

Detention facility. Our analyses of ICE data found that of the over 4,600 detentions of pregnant women, 78 percent of detentions of pregnant women were initially detained at an IHSC-staffed facility. See appendix II for more details on these data. According to ICE officials, pregnant women may first learn about their pregnancy when a test is performed during their intake into a detention facility. These over 4,600 detentions of pregnant women resulted in approximately 50,300 detention days with more than 66 percent of total detention days spent at IHSC-staffed facilities (see App. II).

Some facilities may have a large number of detention days associated with the intake of pregnant women, but may not detain women for a long period of time before releasing or transferring them. For example, at a facility that had one of the largest number of detention days for pregnant women, officials stated that they generally release women once the pregnancy is confirmed. Further, according to ICE officials, ICE will try to transfer pregnant women from their initial detention facility to an IHSC- staffed detention facility or a family residential center—if she is part of a family unit—to ensure they are provided the appropriate accommodations and care. For example, ICE may transfer a pregnant woman awaiting a credible fear determination, as these cases may take longer to process and result in longer detention stays. However, an IHSC official also stated that ICE may detain pregnant women at non-IHSC facilities if ICE believes that the facility can provide the appropriate level of care. Nearly 70 percent of pregnant women’s detention days were spent at an IHSC- staffed facility or a family residential center. Contract detention facilities— both IHSC-staffed and non-IHSC—had the highest average number of days for the detention of pregnant women, as shown in table 3.

Gestation of pregnancy. Of the 1,450 detentions of pregnant women for which gestation data were available, 49 percent were for women in their first trimester and 41 percent were for women in their second trimester at the time of intake. Ten percent were for women in their third trimester at the time of intake. Of the detentions involving pregnant women in their third trimester, 75 percent were released within one week or less, 9 percent between 8 and 15 days, and the remaining 16 percent between 16 and 90 days. According to ICE officials, ICE does not detain pregnant woman in their third trimester or a pregnant woman who is unlikely to be removed. However, officials stated that there are instances when it takes ICE time to gather information prior to making a custody determination— such as when it needs to collect criminal conviction data to making a custody determination—which could result in detained pregnant women who are nearing or in their third trimester. This is consistent with what ICE officials told us during our visits to facilities in all four locations—that they generally do not detain pregnant women in their third trimester. However, some explained, that pregnant women in their third trimester may be detained if, for example, they are subject to mandatory detention.

CBP Has Data on Pregnant Women in Certain Locations and Has Taken Action that Could Provide Additional Information on Pregnant Women at Other Locations

Number of pregnant women. Because of CBP facilities’ short-term nature and limited on-site medical care, CBP does not routinely conduct pregnancy tests of women in their custody, and as such, has limited data on pregnancy. However, ICE data provide insight into CBP encounters with pregnant women. Specifically, our analysis of ICE data from calendar years 2016 through 2018 indicated that nearly 4,400 of ICE’s over 4,600 detentions of pregnant women resulted from CBP arrests.

In addition, OFO and Border Patrol collected some data on women in their custody who reported being pregnant. OFO reported holding over 3,900 pregnant women from March 2018 through September 2019 at its ports of entry. At the two sectors where Border Patrol is required to collect such data, Border Patrol reported holding over 750 pregnant women in its facilities from March 2017 through March 2019. As shown in table 4, most of these women reported being in their second or third trimester. These women may have been transferred to ICE and may also be included in the count of pregnant women detained by ICE.

In accordance with its January 2019 directive, Interim Enhanced Medical Efforts (January 2019), CBP developed a standardized health interview form that can be used by Border Patrol and OFO. The form includes a question about pregnancy and nursing which could allow for additional data on the number of women in CBP custody that report being pregnant. In December 2019, CBP officials told us that they distributed the form to its field locations.

Pregnancy Outcomes. In addition, we reviewed CBP significant incident reports to determine if any pregnant woman encountered or held by CBP had experienced a birth, stillbirth, or miscarriage during calendar year 2015 through February 2019. Our analysis of CBP reports during this time frame found that pregnant women encountered or apprehended by CBP experienced 43 births, three miscarriages, and six stillbirths after being taken to the hospital by CBP. In some of these incidents, Border Patrol agents encountered pregnant women in the field and took them directly to the hospital. In these cases, the pregnant woman was not in a Border Patrol facility directly prior to being taken to the hospital.

DHS Policies and Detention Standards that Address the Care of Pregnant Women Vary by Facility Type and Component

ICE Policies and Detention Standards Address a Range of Pregnancy-Care Topics that Vary across Facility Types; ICE Has Planned Updates to Address Gaps

ICE has policies and detention standards that address a variety of pregnancy-related topics regarding the care of pregnant women, such as pregnancy testing requirements, the use of restraints, and prenatal care. However, we identified certain facility types that did not address all pregnancy-related topics in their policies or detention standards as of December 2019, which ICE is taking actions to address. Appendix III details ICE’s policies and detention standards related to the care of pregnant women in detention. For the purpose of our analysis, the facility type is based on contractually obligated detention standards and the presence of IHSC staff, as these factors dictate which detention standards the facility type is required to adhere to and whether IHSC policies apply.

Specifically, we identified 16 topics related to the care of pregnant women and found that in most facility types, ICE had at least one policy or detention standard that addressed many of these topics. Further, we found that if the facility type had policies or detention standards in place regarding a specific topic on the care of pregnant women, at least one of the policies or detention standards generally aligned with recommended guidance from professional associations, NGOs, and federal agencies, (see app. IV for our summary of recommended guidance and associated examples). In addition, we found that from calendar years 2016 through 2018, 64 percent of the detentions of pregnant women were initially detained at the two facility types that had the most policies or detention standards related to each of the pregnancy topics, as of December 2019. Table 5 shows whether policies or detention standards at the various facility types addressed each of the 16 topics, as well as the associated number of detentions of pregnant women—based on the facility in which they were first detained and number of detention days from calendar years 2016 through 2018.

ICE is taking numerous actions to address these gaps in its policies and detention standards. For example, according to ICE officials, ICE has updated, or is in the process of updating, its policies and detention standards, and these updates will address many of the gaps that we identified for the pregnancy-related topics. Specifically, ICE revised its 2000 NDS in December 2019 and the 2007 Family Residential Standards are under revision and will be sent to management for review in February 2020. According to IHSC officials, the revised standards will address all of the gaps we identified for 2007 Family Residential Standards and 2000 NDS facility types. Further, IHSC officials stated that they are revising IHSC’s Women’s Health Directive and guidance on care for chronic conditions to include required and recommended vaccines for pregnant women and HIV care, respectively—which will address these gaps at IHSC-staffed facilities. Finally, according to ICE officials, facility types operating under the 2008 PBNDS will be modified to either the 2019 NDS 2019 or 2011 PBNDS.

In addition to these updates, in accordance with ICE’s December 2017 memo on Identification and Monitoring of Pregnant Detainees, ICE is to ensure pregnant detainees receive appropriate medical care, and ensure detention facilities are aware of their obligations regarding directives and detention standards that apply to pregnant detainees, among other things. ICE has mechanisms for maintaining oversight of pregnant detainees, as required by policy. Specifically, ICE collects data to monitor the condition of pregnant women in its custody, and according to ICE officials, ensures that the facility can accommodate the woman. In addition, IHSC conducts weekly reviews that focus on high-risk pregnancies, pregnancies in the third trimester, and recent miscarriages. According to an IHSC official, ICE inspections can contribute to IHSC’s understanding of the care of pregnant women at a given facility. Further, although ICE officials stated that it does not have training dedicated to the care of pregnant women in ICE detention specifically, its basic training includes instruction on pregnant detainees. This training is in addition to the professional qualifications of medical staff onsite.

CBP Has Policies and Standards Regarding Its Short-Term Care of Pregnant Women

CBP has some policies and standards regarding the care of pregnant women held in their short-term facilities. Specifically, CBP has national standards on the transport, escort, detention, and search of detainees, with specific requirements for pregnant women. For example, these standards state that barring exigent circumstances, CBP must not use restraints on pregnant detainees unless they have demonstrated or threatened violent behavior, have a history of criminal or violent activity or an articulable likelihood of escape exists. Further, Border Patrol and OFO have policies that address nutrition and special accommodations for pregnant women. See appendix V for more details on CBP policies related to pregnant women. Although these policies and national standards do not cover the full range of the 16 pregnancy-related care topics we identified, CBP facilities are designed for holding individuals for no more than 72 hours; therefore, CBP’s facilities are not equipped to provide long-term care. Specifically, CBP does not routinely conduct pregnancy testing and historically it did not have on-site medical care at all its facilities. For the policies and standards that CBP does have in place regarding pregnant women, we found that they generally aligned with the recommended guidance from expert and professional organizations.

In addition to policies that direct the care of pregnant women, although CBP does not have training dedicated to the care of pregnant women specifically, CBP provides initial and annual refresher training on its national standards for the transport, escort, detention, and search of detainees, which includes requirements for pregnant women.

DHS Inspections, Medical Data, and Complaints Offer Insights into the Care Provided to Pregnant Women

ICE Inspections Found 79 Percent or Greater Compliance with Most of Its Pregnancy-Related Performance Measures

ICE uses various inspections for accessing facilities’ compliance with policies and detention standards—the frequency and focus of which vary. Some inspections also include pregnancy-related performance measures, such as a measure assessing whether a pregnancy test was performed at intake. We reviewed results from the five ICE inspections that address compliance with pregnancy-related policies and detention standards from 2015 through June 2019. These inspections vary in their scope and targeted facility types (see app. I for more details on each of these inspections). These inspections—along with available medical data—offer insight into the care of pregnant women. Two inspections include pregnancy-related performance measures, and compliance with these measures ranged from 53 to 100 percent, with most indicating 79 percent or more compliance.

Specifically, one inspection of 129 ICE detention facilities—that included inspections of both IHSC-staffed and non-IHSC facilities—found that compliance was 91 percent or more for each of the six performance measures from December 2016 through March 2019, as shown below.

Pregnancy testing performed at intake: 93 percent

Pregnancy testing performed prior to x-rays or initiating medication: 100 percent

Obstetrician-gynecologist (OB-GYN) consult ordered within 7 days of pregnancy confirmation: 98 percent

Patient seen by OB-GYN within 30 days of pregnancy confirmation:

Prenatal vitamins prescribed: 100 percent

Screened for HIV, sexually transmitted infections, and viral hepatitis: Instances of non-compliance—which were 9 percent or less for each measure—occurred at 16 detention facilities subject to a range of detention standards. Three of these facilities were IHSC-staffed facilities, and 13 were non-IHSC facilities. IHSC documentation indicates that corrective actions are to be implemented to help address inspection findings. See appendix VI for details on the number of records reviewed during the inspections, and the compliance rates.

Our analysis of available medical data and interviews with pregnant detainees showed similar findings regarding pregnancy testing at intake. Specifically, from calendar year 2016 through 2018, 92 percent of women in ICE detention facilities received a pregnancy test either the same day as intake to the facility or the next day. This could include women who arrived at a detention facility in the evening and are tested the next day. Of the remaining, 3 percent were tested within 2 to 3 days of intake, 4 percent were tested between 4 days and 2 weeks, and 2 percent were tested after 2 weeks of being detained. According to the 10 pregnant women we interviewed who were detained at 3 ICE detention facilities we visited, all 10 stated that they received a pregnancy test when they arrived at the facility or within the same day.

For the second inspection that included performance measures related to the care of pregnant women at IHSC-staffed facilities, overall compliance was 79 percent or more for most of the nine performance measures from fiscal years 2015 through 2018. The following shows the minimum level of overall compliance for all facilities during this timeframe.

OB-GYN consult ordered and documented within 7 days of pregnancy

Patient seen by OB-GYN within 30 days: 92 percent

Prenatal vitamins prescribed: 95 percent

Detainee education documented at each encounter: 79 percent

Records reviewed by provider after OB appointment: 79 percent

Proper diet ordered: 86 percent

Appropriate labs ordered if not obtained from OB-GYN: 79 percent

Pregnant patient screened for HIV, sexually transmitted infections, and viral hepatitis: 81 percent

Hepatitis B vaccine offered: 53 percent However, for one measure—whether the Hepatitis B vaccine was offered—compliance was 53 percent. ICE officials stated that this performance measure reflects recommended practices but is not specifically required by policy or detention standards. According to ICE officials, any issues identified during IHSC inspections are handled locally at the field level through facilities’ quality improvement processes, which includes developing corrective action plans. See appendix VI for the average annual compliance for each measure from fiscal years 2015 through 2018.

Our analysis of available medical data for IHSC-staffed facilities and interviews with pregnant detainees and NGOs provides additional perspectives regarding these issues on the care of pregnant women. Specifically, our analysis of ICE data showed 422 detentions in which a pregnant woman was in an IHSC-staffed facility at some point received at least one referral to an OB or OB-GYN between calendar year 2016 and 2018. Based on ICE’s performance measures, pregnant women are to receive an OB-GYN referral within 7 days of pregnancy confirmation— although available data showed that most pregnant women were being released from detention within 7 days. In addition, our analysis of ICE data showed that detentions in which a pregnant woman was in an IHSC- staffed facility at some point were assigned certain special needs, such as a special diet (1,245), lower bunk (113), no heavy lifting (87), and limitations on the use of restraints (316). In addition, all 7 of the pregnant women we spoke with in IHSC-staffed detention facilities said that they received appropriate accommodations, such as a lower bunk and blankets. Similarly, 6 of the 7 pregnant women we spoke with at IHSC-staffed facilities said that they were provided proper nutrition and snacks. The other pregnant woman did not discuss the adequacy of the nutrition she was provided.

In addition, both of these two inspections provided insights into OB-GYN referrals and prenatal vitamins that were generally similar to the information we obtained from pregnant detainees at the locations we visited. Specifically, the above inspections indicated 75 to 98 percent compliance on performance measures related to access to OB-GYN care. Eight of the 10 pregnant women we spoke with in ICE detention did not express concerns about access to OB-GYN when asked about the sufficiency of medical care. However, two stated that they would like more timely access to an OB-GYN, and they did not know when their appointments would occur. In addition, representatives from three NGOs stated that they heard concerns about pregnant women not having access to OB-GYN care or prenatal vitamins. Further, the above inspections indicated 95 to 100 percent compliance on performance measures related to prescribing prenatal vitamins, and all 10 of the pregnant women we spoke with in ICE detention said that they were provided prenatal vitamins.

Although they did not have specific performance measures, three additional inspections identified 19 findings related to the care of pregnant women. All of the findings occurred at non-IHSC facilities.

Three of the 19 findings indicated that medical care was not provided or offered. For example, one pregnant woman was not offered a mental health assessment after reporting that she had a miscarriage at a prior facility.

Seven included a recommendation to provide additional medical care, such as pregnancy testing.

Four indicated insufficient documentation, such as medical records that were not transferred between facilities, or no documentation that pregnancy testing had occurred.

Five indicated that a required policy did not exist or did not specify the required standards of care.

All but one of the facilities inspected took corrective actions to address the findings. For example, one inspection found that the facility’s initial health assessment form did not address pregnancy testing. In response, the facility updated its intake screening form to include pregnancy testing. ICE determined that the facility that did not implement corrective actions to address deficiencies identified during the inspection would not be used for the detention of ICE detainees. See appendix VI for additional information on each deficiency, recommendation, and corrective action.

Additionally, our review of available data and interviews with pregnant detainees and officials at the locations we visited provided insight into issues related to segregation and the use of restraints—generally finding that these were rarely used. Specifically, our review of ICE data identified two pregnant women who were initially detained from 2015 through 2018, and segregated at some point during their detention—one for 8 days and one for over 4 months. In both cases, ICE reported the reason for the segregation was that the detainee was a threat to the facility’s security. Further, all 10 of the pregnant women we interviewed stated that they had not been segregated, and all the detention officials we interviewed at the four locations we visited stated that they were not aware of any instances of pregnant women being segregated. Similarly, none of the 10 pregnant detainees reported being placed in restraints, and the officials we interviewed at the four locations generally stated that pregnant women are not to be restrained except in extreme circumstances, such as risk of violence or escape—which is consistent with ICE policies and standards. One official said that he was aware of an incident where a pregnant woman was restrained when she attempted to harm herself and her child. In addition, officials from five local organizations or coalitions we spoke with stated that they had not heard concerns about instances of the use of restraints or segregation.

CBP Generally Takes Pregnant Women to Offsite Facilities for Care, and Has Plans to Enhance its Medical Support

CBP generally relies on offsite care for pregnant women, and as a result, has limited available information on care CBP provided to pregnant women. However, they have efforts underway to enhance its medical support at selected facilities. As previously discussed, CBP facilities are designed for short-term care, and CBP does not routinely administer pregnancy tests and generally did not have on-site medical personnel. According to CBP officials, they typically refer individuals to local medical providers in their area, as appropriate and for all emergent or serious issues—including concerns presented by pregnant women. In addition, if CBP needed to provide a pregnancy test to a woman in its custody, it would take the woman to an offsite medical provider.

Our analyses of available data indicate that CBP took pregnant women for a hospital visit or admission at least 168 times from 2015 through 2018. See table 6 for additional information. Ninety-nine percent of these hospital trips involved Border Patrol, while the remaining 4 percent involved OFO.

Although CBP generally relies on offsite care for pregnant women, CBP established some on-site medical care and has efforts underway to enhance its medical support at additional Border Patrol facilities and OFO ports of entry. Specifically, one port of entry and three Border Patrol facilities established on-site medical care in 2013 and 2015, respectively. CBP officials at one of these locations told us that they developed on-site medical care based on the volume of crossings, as well as the operational costs for transporting individuals to offsite medical facilities and performing hospital watches. Subsequently, CBP’s January 2019 memo regarding enhanced medical efforts at CBP facilities included efforts to expand medical support. According to a senior CBP official, the agency had staffed more than 40 Border Patrol facilities and OFO ports of entry along the southwest border with on-site contracted medical care, as of January 2020. According to CBP officials, contracted medical staff provide enhanced medical support through initial health intake interviews, medical assessments, diagnosis, treatment, referral, and follow up for persons in custody, including pregnant women. CBP officials stated that they will continue to rely on offsite care to provide emergency or advanced care.

Over 100 Complaints Were Filed about ICE and CBP’s Care of Pregnant Women

DHS has various processes to obtain and address the hundreds of medical care complaints it receives annually. Specifically, an individual can file a complaint directly to facilities, ICE, CBP, and other DHS entities, including the Office of Inspector General and Office for Civil Rights and Civil Liberties (CRCL). We identified 107 unique complaints that detainees, family members, NGOs, or other parties submitted to various entities from January 2015 through April 2019—54 that involved ICE’s care of pregnant women, 50 that involved CBP, and 3 that involved both. As shown in figure 2, some of these complaints were under investigation as of August 2019, and some were substantiated; however, in most cases there was not enough information for the investigating agency to determine if proper care had been provided, among other things.

Regarding the complaints against ICE, the most common type was that ICE allegedly did not provide medical care, or that the medical care was not quality or timely. See appendix VIII for additional information about the number and types of complaints submitted.

Eleven of the 54 complaints against ICE remained open as part of an on- going investigation, while the remaining 43 were closed. Of the 43 complaints that were closed:

An investigation substantiated one complaint that prenatal vitamins had not been provided at an IHSC-staffed facility. In response, ICE reported taking actions to address the complaint.

Investigations partially substantiated one complaint regarding delays in medical care being provided. According to ICE, the delays had resulted from the time required to get medication approved. In response to the complaint, ICE reported coordinating with the facility to address the issues identified.

Investigations found that 18 complaints were unsubstantiated. For example, ICE’s review of medical records found that appropriate care had been provided.

For the remaining 23 closed complaints, the complaint was not substantiated or unsubstantiated for a variety of reasons. For 11 complaints, the investigating agency determined that it did not have enough information to conduct an investigation, or the agency investigated the complaint but did not have enough information to establish whether the complaint was substantiated or unsubstantiated. For example, the allegation did not contain detailed biographical information, medical records did not contain enough information, or the detainee had been released and the agency could not follow-up. For the remaining 12 complaints, agency documentation did not clearly specify whether the complaint was substantiated or unsubstantiated.

Regarding complaints against CBP, the most common type was that pregnant women had allegedly been physically, verbally, or otherwise mistreated. See appendix VIII for additional information about the number and types of complaints submitted.

Of the 50 complaints against CBP, four remained open as part of an on- going investigation, while the remaining 46 were closed. Of the 46 complaints that were closed:

An investigation substantiated one complaint that a Border Patrol agent violated social media policy by posting a picture and information about a pregnant woman in custody. In response, CBP reported that the employee was suspended for two days.

Investigations found that five complaints were unsubstantiated, and one was partially unsubstantiated. For example, an investigation included a review of video footage at a port of entry, among other things, and found that excessive force had not been used.

Eight complaints described an event that occurred, such as a miscarriage, but the complaint did not allege that mistreatment or improper care occurred.

For the remaining 31 closed complaints, the complaint was not substantiated or unsubstantiated—for a variety of reasons. For 10 complaints, the investigating agency determined that it did not have enough information to conduct an investigation, or the agency investigated the complaint but did not have enough information to establish whether the complaint was substantiated or unsubstantiated. For the remaining 21 complaints, agency documentation did not clearly specify whether the complaint was substantiated or unsubstantiated.

With regard to the three complaints that involved allegations against both ICE and CBP, one remained open as part of an on-going investigation, while the other two complaints were found to be unsubstantiated.

Agency Comments

We provided a draft of this report to DHS for review and comment. DHS provided comments, which are reproduced in appendix IX. DHS also provided technical comments, which we incorporated as appropriate. In addition, we provided relevant excerpts of the report to American College of Obstetricians and Gynecologists, American Correctional Association, and National Commission on Correctional Health Care for review. Officials from these entities provided technical comments, which we incorporated as appropriate.

As agreed with your offices, unless you publicly announce the contents of this report earlier, we plan no further distribution until 30 days from the report date. At that time, we will send copies to the appropriate congressional committees and the Acting Secretary of the Department of Homeland Security. In addition, the report is available at no charge on the GAO website at http://www.gao.gov.

If you or your staff have any questions about this report, please contact me at (202) 512-8777 or goodwing@gao.gov. Contact points for our Office of Congressional Relations and Public Affairs may be found on the last page of this report. Key contributors to this report are listed in appendix X.

Appendix I: Methodology for Analyses of Data, Inspections, and Complaints

This appendix provides additional details on selected methodologies used to address our questions. Specifically, this includes information on our analyses of U.S. Immigration and Customs Enforcement (ICE) data and inspection findings and Department of Homeland Security (DHS) complaints used to address these questions: 1. What do available data indicate about pregnant women detained or held in DHS facilities? 2. What policies and standards does DHS have to address the care of pregnant women, and to what extent are they applicable across all facilities? 3. What is known about the care provided to pregnant women in DHS facilities?

Analyses of ICE Data

To address our first and third objectives, and provide context for our second objective, we reviewed data sources that ICE uses to track pregnant women in detention from calendar years 2016 through 2018 and matched these data with various ICE databases. We selected these years since ICE first collected data on all pregnant women beginning in June 2015, and 2018 was the last full year of available data for our audit. Specifically, we matched ICE Health Service Corps (IHSC) records for pregnant women detained during calendar years 2016 through 2018 with individual-level detention dataset the ICE Integrated Decision Support (IIDS) database to determine the total number of detentions of pregnant women, as well as the length of detention, facility location, case category status, arresting agency, gestation of pregnancy, when the pregnancy test was conducted, and whether there is an associated criminal conviction (criminality).

To conduct our analyses, we matched pregnancy data to the IIDS detention data using alien number and excluded additional records we were unable to match. Because individuals may have multiple detentions, we compared the admission or book-in date from each data source with the book-in dates from the IIDS detention data, and excluded additional records with dates more than 30 days apart. ICE collected data for 1,437 pregnant detainees in 2016; 1,170 in 2017; and 2,126 in 2018. We excluded 60 of the unique pregnant detainee records for 2016; 20 for 2017; and 32 for 2018 because we were unable to match these records to the IIDS individual-level detention data using alien number and book-in date combinations. According to ICE officials, this may be due to data entry errors. As a result, our analyses are based on over 4,600 detainee records we were able to match: 1,377 for 2016; 1,150 for 2017; and 2,094 for 2018. In general, this was our study population, unless otherwise noted in the report.

We also merged the detention data with data from ICE’s weekly facility list report, as of February 2019, to determine who owned and operated the facility, whether it was staffed by IHSC officials, and in what state the facility was located. Further, we merged additional IHSC data with our study population to determine the number of obstetrician-gynecologist referrals and numbers that were assigned certain special needs, such as a special diet, lower bunk, no heavy lifting, and limitations on the use of restraints. We also obtained and analyzed data from ICE’s Segregation Review Management System to determine if any of the pregnant women had been segregated.

Finally, we analyzed ICE IHSC data on pregnancy outcomes—abortions, births, stillbirths, and miscarriages. These women who experienced such outcomes while detained may include the same women reported in our study population of more than 4,600 pregnant women detentions from calendar years 2016 through 2018, as well as pregnant women detained in calendar year 2015 and January through June 2019. We did not merge the outcome data with our other data sets, but were able to confirm that most of the outcomes were associated with alien numbers from the over 4,600 detentions in our study population.

We assessed the reliability of the data used in each of our analyses by analyzing available documentation, such as related data dictionaries; interviewing ICE officials knowledgeable about the data; conducting electronic tests to identify missing data, anomalies, or potentially erroneous values; and following up with officials, as appropriate. We determined the data were sufficiently reliable for describing general information on pregnant women detained by ICE, as well as the care provided to them.

Analyses of ICE Inspection Results

To address our third objective, we analyzed reports and data from five ICE inspections that address compliance with pregnancy-related policies and detention standards from 2015 through July 2019—the most recent information available at the time of our review. We selected these inspections because they review some aspect of the care provided to pregnant women. Table 7 provides additional information on these inspections.

As noted in the table, two of these inspections contained pregnancy- related performance measures. The remaining three inspections assess compliance and identified findings related to the care of pregnant women, but did not have specific performance measures. For the three inspections that did not contain performance measures, we categorized the nature of each finding, such as a recommendation to provide additional medical care. We developed these categories based on a content analysis of the inspection findings, which involved one analyst categorizing the finding and a second person verifying the categories. If there were differences in analyses, these were reconciled through discussion between the two analysts and a final determination of the appropriate category was made. We also analyzed ICE documentation on corrective actions that facilities reported taking to address inspection findings, and used ICE facility data to determine who provided medical care at these facilities.

To determine the scope and any limitations of inspection reports and data, we spoke with agency officials responsible for managing these inspections and the data systems used for documenting results. We also reviewed relevant documentation, such as data dictionaries and inspection worksheets. We determined that these data were sufficiently reliable for our purposes of describing the results of inspections regarding the care of pregnant women in ICE custody.

Analyses of Complaints

We reviewed and categorized complaints that detainees, family members, non-governmental organizations, or other parties submitted to various entities from January 2015 through April 2019—the latest available complaints at the time of our review—regarding ICE and CBP’s care of pregnant women. Specifically, we reviewed complaint data from DHS’s Office for Civil Rights and Civil Liberties (CRCL), DHS’s Office of Inspector General, and IHSC. We selected these complaint systems because, according to DHS officials, they contained relevant information on the care of pregnant women, could be queried in an electronic format, and minimized duplicate complaints across systems. We categorized each complaint based on a content analysis of the complaint narrative, which involved one analyst categorizing the complaint and a second person verifying the category. If there were differences in analyses, these were reconciled through discussion between the two analysts and a final determination of the appropriate category was made. We developed categories for 10 pregnancy outcomes, including births or miscarriages at a DHS facility or hospital, as well as 20 categories to describe the nature of the concerns, including physical mistreatment, use of restraints, or medical care not provided. The total number of concerns identified in our analysis exceeds the number of unique complaints filed because each unique complaint may identify more than one area of concern. We also used ICE facility data to determine, for example, who provides medical care at the facilities where the alleged events occurred.

In addition, we analyzed agency documentation on the extent to which complaints could be substantiated, and any corrective actions that agencies and facilities reported taking to address complaints. To determine the scope and any limitations of the complaint information we received, we spoke with agency officials responsible for managing these complaint processes and the data systems used for documenting results. We also reviewed relevant documentation, such as user manuals for complaint systems.

Appendix II: Initial Detention Facility and Detention Days for Pregnant Women in U.S. Immigration and Customs Enforcement Facilities

This appendix provides additional details on our analyses of U.S. Immigration and Customs Enforcement (ICE) data from calendar years 2016 through 2018 on (a) where pregnant women were initially detained and (b) facilities that had the largest number of detention days involving pregnant women. In particular, these analyses describe whether the facility has ICE Health Service Corps (IHSC) staff and who owns and operates the facility, based on contracts or agreements.

Initial detention facility. Our analyses of ICE data found that of the over 4,600 detentions of pregnant women, in regards to IHSC presence, almost 78 percent of detentions of pregnant women were initially detained at an IHSC-staffed facility. Further, 51 percent were at service processing centers that are owned and primarily operated by ICE, all of which were also staffed by IHSC, as shown in table 8. According to ICE officials, many pregnant women first learn about their pregnancy when a test is performed during their intake into a detention facility.

Although pregnant women were initially detained in various facility types—based on IHSC presence and who owns and operates the facility, most occurred in eight specific detention facilities located in three states. Specifically, of ICE’s over 4,600 pregnant women detentions from calendar year 2016 through 2018, 86 percent were initially detained in one of eight of these detention facilities—with one facility having 45 percent of the intakes of pregnant women.

Facilities with the most number of detention days. For these over 4,600 detentions of pregnant women, ICE detained them for a total of almost 50,300 days from calendar year 2016 through 2018. Our analyses of ICE data found that of the 50,300 detention days of pregnant women, in regards to IHSC presence, 66 percent of these days were at an IHSC-staffed facility. Further, over half were at intergovernmental service agreement facilities—including family residential centers, as shown in table 9. Some facilities may have a large number of detention days associated with the intake of pregnant women, but these facilities may not detain women for a long period of time before releasing or transferring them. For example, at a facility that had one of the largest number of detention days for pregnant women, officials stated that they generally release women once the pregnancy is confirmed.

Although pregnant women spent their detention days in various facility types—based on IHSC presence and who owns and operates the facility, most occurred in 19 specific detention facilities located in seven states. Specifically, of those days that pregnant women were detained by ICE, 89 percent of these days were in one of these 19 detention facilities.

Appendix III: U.S. Immigration and Customs Enforcement Policies on Care for Pregnant Women

U.S. Immigration and Customs Enforcement (ICE) detention facilities and staff are subject to a variety of policies, including ICE-wide policy directives and memoranda, ICE Health Service Corps (IHSC) policies, and detention standards, as of December 2019. We categorized and summarized these policies and standards, as shown below.

ICE-wide Policies

ICE-wide policies are directed at ICE staff and officers, and not to contractors or facility staff. The following ICE policies address pregnant detainees and ICE supervision of pregnant detainees: ICE Directive 11032.3: Identification and Monitoring of Pregnant Detainees (2017)

ICE Directive 11065.1: Review of the Use of Segregation for ICE Detainees (2013)

ICE Directive 11002.1: Parole of Arriving Aliens found to Have a Credible Fear of Persecution or Torture (2010)

ICE Memorandum: Use of GPS Monitoring Devices on Persons who are Pregnant or Diagnosed with a Severe Medical Condition (2009)

ICE ERO Policy 11155.1: Use of Restraints (2012)

Enforcement and Removal Operations National Detainee Handbook (2016)

These ICE-wide policies do not apply to contract or facility staff unless ICE modified the facility’s contract or if these are already included in the facility’s detention standards to which they are obligated. However, the National Detainee Handbook is a resource for detainees at detention facilities operating under ICE detention standards, excluding family residential centers. We categorized these policies and summarized them accordingly.

Intake health screening inquiries about pregnancy. The policy refers to ICE’s responsibility to monitor detention facilities and ensure they meet national detention standard requirements to provide all newly admitted detainees an initial medical screening including pregnancy screening.

ICE Directive 11032.3: Identification and Monitoring of Pregnant Detainees (2017)

Provision of prenatal care. ICE supervisory staff have responsibilities to ensure that pregnant detainees receive appropriate medical care, including transfer to a different facility if necessary. ICE medical staff also have a responsibility to monitor the condition of pregnant detainees and communicate any concerns to supervisory staff.

ICE Directive 11032.3: Identification and Monitoring of Pregnant Detainees (2017)

Enforcement and Removal Operations National Detainee Handbook (2016)

Segregation of pregnant women. ICE has a responsibility to monitor the use of segregation at detention facilities to ensure that they are adhering to detention standards.

ICE Directive 11065.1: Review of the Use of Segregation for ICE Detainees (2013)

Use of restraints on pregnant women. Officers should take reasonable precautions to avoid causing discomfort when transporting a restrained detainee. At processing sites or non-ICE detention facilities, ICE personnel shall follow local policies and procedures.

ICE ERO Policy 11155.1: Use of Restraints (2012)

Record keeping on pregnant women actions. ICE supervisors should ensure that ICE staff and contracted medical staff have processes to notify them of the arrival of a pregnant woman to a detention facility and ensure staff and facilities are aware of their obligations regarding pregnant detainees. IHSC staff are responsible for monitoring the condition of pregnant women while detained, as well as maintaining their medical records. Any instance of segregation of a pregnant woman must be documented in writing.

ICE Directive 11032.3: Identification and Monitoring of Pregnant Detainees (2017)

ICE Directive 11065.1: Review of the Use of Segregation for ICE Detainees (2013)

IHSC-wide Policies

IHSC policies are directed specifically toward IHSC staff at detention facilities where IHSC provides medical services. The following IHSC policies address pregnant detainees: ICE Directive 11772.2: Women’s Health Services (2017)

ICE Directive 11741.4: Health Assessment (2016)

ICE Directive 11742.2: Pre-Screening (2015)

ICE Directive 11744.2: Intake Screening and Intake Reviews (2016)

We categorized these policies and summarized them accordingly.

Intake health screening inquiries about pregnancy. Intake screening includes pregnancy testing of women 10 to 56 years of age as well as questioning of pregnancy status.

ICE Directive 11772.2: Women’s Health Services (2017)

ICE Directive 11742.2: Pre-Screening (2015)

ICE Directive 11744.2: Intake Screening and Intake Reviews (2016)

Pregnancy testing at intake. Intake screening includes pregnancy testing of women 10 to 56 years of age and inquiry of reproductive health including previous pregnancies.

ICE Directive 11772.2: Women’s Health Services (2017)

ICE Directive 11741.4: Health Assessment (2016)

ICE Directive 11744.2: Intake Screening and Intake Reviews (2016)

Access to abortion. In the event of a threat to a woman’s life from carrying a pregnancy to term, or else in cases of rape or incest, ICE must bear the cost of a detainee’s decision to terminate a pregnancy; otherwise the woman must bear the cost. ICE should offer medical resources to support effective recovery and follow-up care.

ICE Directive 11772.2: Women’s Health Services (2017)

Provision of prenatal care. Pregnant women should be seen by medical providers at least once a month while detained. They should also be referred to an obstetric specialist, and their medical records shared with the specialist to facilitate care.

ICE Directive 11772.2: Women’s Health Services (2017)

ICE Directive 11741.4: Health Assessment (2016)

ICE Directive 11744.2: Intake Screening and Intake Reviews (2016)

Provision of postnatal care. A postpartum detainee must receive postnatal care from a medical provider, in consultation with an obstetric specialist, at least once a month.

ICE Directive 11772.2: Women’s Health Services (2017)

Mental health services and counseling for pregnant women. Any female detainee who gave birth, miscarried, or terminated a pregnancy within the last 30 days must receive a mental health evaluation, with the evaluation to occur no later than 72 hours after initial referral.

ICE Directive 11772.2: Women’s Health Services (2017)

Care for pregnant women with substance use disorder. Chemically dependent pregnant women are considered high-risk and should be referred to an obstetrician or other appropriate medical provider as soon as they are identified.

ICE Directive 11772.2: Women’s Health Service (2017)

ICE Directive 11744.2: Intake Screening and Intake Reviews (2016)

Use of restraints on pregnant women. Pregnant detainees or those in postdelivery recuperation should not be restrained except in extraordinary circumstances that are documented by a supervisor or directed by a medical authority, whether in an ICE detention facility, in transport, or at a medical facility. Detainees in active labor or delivery can never be restrained. Even if restraints are used, a pregnant woman should never be restrained face down or on her back, or restrained with a belt that constricts the abdomen or pelvis.

ICE Directive 11772.2: Women’s Health Service (2017)

Record keeping on pregnant women actions. Intake screenings and assessments including pregnancy test results must be documented, as are risk factors for high risk pregnancies. Any use of restraints or request for abortion services must be documented. ICE supervisory staff must be notified within 72 hours of the arrival at a detention facility of a pregnant woman.

ICE Directive 11772.2: Women’s Health Service (2017)

ICE Directive 11741.4: Health Assessment (2016)

ICE Directive 11744.2: Intake Screening and Intake Reviews (2016)

ICE Detention Standards

Entities that have a contract or agreement with ICE to hold immigration detainees are generally contractually obligated to one of four sets of detention standards. These standards address a range of our pregnancy- related categories of care and vary by standard.

2000 ICE National Detention Standards (NDS)

2007 ICE Family Residential Standards (FRS)

2008 ICE Performance-Based National Detention Standards 2008 (2008 PBNDS)

2011 ICE Performance-Based National Detention Standards 2011 (2011 PBNDS)

We categorized these standards and summarized them accordingly. The 2011 PBNDS standards received revision in 2016. Whether a 2011 PBNDS facility is contractually required to adhere to the 2016 revision is dependent upon the contract language negotiated in each agreement. Where appropriate, the summaries below note changes to policy as a result of those revisions.

Intake health screening inquiries about pregnancy.

2008 PBNDS: Initial screening should be done within 12 hours of arrival and should inquire about the possibility of pregnancy.

2011 PBNDS: Initial screening should be done within 12 hours of arrival and should inquire about the possibility of pregnancy. In the 2016 revisions, the evaluation also includes a pregnancy test for women aged 18 to 56.

Pregnancy testing at intake.

2008 PBNDS: Initial screening should be done within 12 hours of arrival and should inquire about the possibility of pregnancy.

2011 PBNDS: In the 2016 revisions, initial screening includes pregnancy testing of women 18 to 56.

Access to abortion.

2011 PBNDS: If the life of the mother is endangered by carrying the fetus to term, or in the case of rape or incest, ICE will assume the costs to terminate the pregnancy. ICE shall arrange the transportation for the medical appointment, and to counseling services if requested in all cases, including those where rape, incest, or risk to life do not apply. Every facility, either directly or via contractor, must provide female detainees with access to counseling for pregnancy planning if the detainee wishes to receive an abortion.

Provision of prenatal care.

FRS: Female residents will have access to pregnancy management services including routine prenatal care

2008 PBNDS: Female detainees will have access to pregnancy management services including routine prenatal care

2011 PBNDS: Pregnant detainees will have access to pregnancy management services including routine prenatal care. They will also receive access to a specialist and receive a health assessment. The 2016 revisions note those actions should occur as soon as appropriate or within two working days. The 2016 revisions also give the medical provider authority to identify pregnant detainees’ special needs such as diet or housing requirements and inform all necessary staff and authorities.

Provision of postnatal care.

FRS: Female residents will have access to pregnancy management services including postpartum follow-up care.

2008 PBNDS: Female detainees will have access to pregnancy management services including postpartum follow-up care.

2011 PBNDS: Pregnant detainees will have access to pregnancy management services including postpartum follow-up care. After giving birth, receiving an abortion or miscarrying, mental health assessments should also be offered.

Provision of perinatal/labor care.

2011 PBNDS: Pregnant detainees will have access to specialized care including labor and delivery.

Mental health services and counseling for pregnant women.

FRS: Pregnant females will have access to pregnancy management services that include counseling and assistance.

2008 PBNDS: Pregnant females will have access to pregnancy management services that include counseling and assistance.

2011 PBNDS: Pregnant detainees will have access to care including counseling and assistance. Detainees can also request transportation to religious, medical and social counseling when considering termination of a pregnancy. In 2016 revisions, intake screening should include education to female detainees about mental health services related to pregnancy and women’s health.

Care for pregnant women with substance use disorder.

2008 PBNDS: Female detainees will have access to pregnancy management services that include addiction management.

2011 PBNDS: In 2016 revisions, all chemically dependent pregnant detainees are to be considered high risk and referred to an obstetrician or other provider capable of addressing their needs immediately.

HIV care for pregnant women.

2011 PBNDS: Medical personnel shall provide all detainees diagnosed with HIV/AIDS medical care consistent with national recommendations and guidelines disseminated through the U.S. Department of Health and Human Services, the Center for Disease Control, and the Infectious Diseases Society of America.

Prenatal vitamins.

2011 PBNDS: Pregnant detainees will have access to prenatal care including prenatal vitamins.

Nutrition for pregnant women.

NDS: Physicians may order snacks or supplemental feedings to increase protein or calories for reasons including pregnancy. In hold rooms, pregnant women should have regular access to snacks, milk, and juice.

FRS: Physicians may order snacks or supplemental feedings to increase protein or calories for reasons including pregnancy. Pregnant women will have access to pregnancy management services that include nutrition.

2008 PBNDS: Physicians may order snacks or supplemental feedings to increase protein or calories for reasons including pregnancy. In hold rooms, pregnant women should have regular access to snacks, milk, and juice. Pregnant women will have access to pregnancy management services that include nutrition.

2011 PBNDS: Physicians may order snacks or supplemental feedings to increase protein or calories for reasons including pregnancy. In hold rooms, pregnant women should have regular access to snacks, milk, and juice. Pregnant women will have access to pregnancy management services that include nutrition. Special consideration is given to pregnant women when providing meals and snacks during transportation. In the 2016 revisions, the medical provider is responsible for identifying special needs of pregnant detainees, including diet, and notifying all necessary staff.

Special accommodations for pregnant women.

2008 PBNDS: In hold rooms, pregnant women will have access to temperature appropriate clothing and blankets and may, depending on facility, have access to bunks, cots, or beds, normally not kept in hold rooms.

2011 PBNDS: In hold rooms, pregnant women will have access to temperature appropriate clothing and blankets and may, depending on facility, have access to bunks, cots, or beds, normally not kept in hold rooms. Pregnant detainees should also have access to lactation services in the facility. In the 2016 revisions, the medical provider is responsible for identifying special needs of pregnant detainees and notifying all necessary staff.

Segregation of pregnant women.

2011 PBNDS: In the 2016 revisions, it is stated that women who are pregnant, post-partum, recently had a miscarriage, or recently had a terminated pregnancy should as a general matter not be placed in a Special Management Unit. In very rare situations, a woman who is pregnant, postpartum, recently had a miscarriage, or recently had a terminated pregnancy may be placed in a Special Management Unit as a response to behavior that poses a serious and immediate risk of physical harm, or if the detainee has requested to be placed in protective custody administrative segregation and there are no more appropriate alternatives available. Also in the 2016 revisions, a facility administrator must notify the appropriate field office director in writing as soon as possible, but no later than 72 hours any time a pregnant woman or one who recently had a miscarriage is placed in segregation. In all cases, in the 2016 revisions, this decision must be approved by a representative of the detention facility administration, in consultation with a medical professional, and must be reviewed every 48 hours.

Use of restraints on pregnant women.

NDS: Pregnant detainees should be given special consideration if restrained as a result of a physical encounter. A medical professional should be consulted immediately in the aftermath, and the detainee examined. Pregnant detainees should be restrained in such a way as to avoid harming the fetus such as not restraining face down.

FRS: Medical staff will advise on the necessary precautions to take when restraining a pregnant detainee and restraint should be done only when other methods have been tried or are impracticable.

2008 PBNDS: Medical staff will advise on the necessary precautions to take when restraining a pregnant detainee. Pregnant detainees should be restrained in such a way as to avoid harming the fetus such as not restraining face down.

2011 PBNDS: A pregnant detainee is not to be restrained except in truly extraordinary circumstances. Even then, it must be documented by a supervisor and directed by a medical authority. Women in active labor or delivery can never be restrained, and if restrained, the detainee should never be face down, on her back, or restrained with a belt that constricts the area of pregnancy.

Record keeping on pregnant women actions.

NDS: The medical provider of a facility will notify the ICE officer in charge whenever a pregnant detainee is identified and any use of force or application of restraints on a detainee should be followed by a medical examination, and its results documented.

FRS: The medical provider of a facility will notify the ICE facility administrator whenever a pregnant detainee is identified. A treatment plan should be developed for any detainee requiring close medical supervision, and approved by the appropriate physician or other medical provider.

2011 PBNDS: When a detainee is pregnant, an alert is notified in their medical record and the facility administrator will receive notice. If a detainee is transferred, it is the administrator’s responsibility to inform ICE of the medical alert. Any use of restraints requires documented approval, including in the detainee’s detention and medical files and guidance from the on-site medical authority. A request to terminate a pregnancy must be documented in the medical file and signed by the detainee. In the 2016 revisions, ICE supervisory staff must be informed within 72 hours when a pregnant detainee is identified.

Appendix IV: Recommended Guidance on the Care of Pregnant Women Detainees

Numerous professional associations, non-governmental organizations, and federal agencies have issued guidance on care to be provided to pregnant women. Specifically, we reviewed the following guidance:

American Civil Liberties Union: Worse than Second-Class: Solitary Confinement of Women in the United States (2014)

American College of Obstetricians and Gynecologists:

Committee Opinion: Health Care for Pregnant and Postpartum Incarcerated Women and Adolescent Females (2016)

Guidelines for Perinatal Care, Eighth Edition (2017)

American Correctional Association Performance-Based Standards and Expected Practices for Adult Correctional Institution, 5th Edition Joint Public Correctional Policy on the Treatment of Opioid Use Disorders for Justice Involved Individuals (2018)

Joint Statement on the Federal Role in Restricting the Use of Restraints on Incarcerated Women and Girls during Pregnancy, Labor, and Postpartum Recovery

National Commission on Correctional Health Care (NCCHC):

Position Statement: Restraint of Pregnant Inmates (2015)

Position Statement on Solitary Confinement (Isolation) (2016)

Position Statement on Breastfeeding in Correctional Settings (2018)

Standards for Health Services in Jails (2018)

Sufrin C., Pregnancy and Postpartum Care in Correctional Settings, National Commission on Correctional Health Care, Clinical Resources Series. (2018)

National Women’s Law Center: Women Behind Bars: A state-by-state report card and analysis of federal policies on conditions of confinement for pregnant and parenting women and the effect on their children (2010)

United Nations Rules for the Treatment of Women Prisoners and Non- custodial Measures for Women Offenders (the Bangkok Rules) (2010)

U.S. Department of Homeland Security (DHS): Report of the DHS Advisory Committee on Family Residential Centers (2016)

U.S. Department of Justice, Bureau of Justice Assistance: Best Practices in the Use of Restraints with Pregnant Women and Girls Under Correctional Custody (2014)

U.S Department of Justice Report and Recommendations Concerning the Use of Restrictive Housing (2016)

Because the specificity of the guidance varies across entities, we summarized the recommended guidance for our report purposes. For example, guidance on nutrition may range from calling for additional meals for pregnant women to more specifically outlining extra caloric and dietary needs. Our summary statement for each of the pregnancy-related topics is included below, along with examples from relevant recommended guidance.

Intake health screening inquiries about pregnancy.

Summary of recommended guidance: The sources that have guidance generally agree that intake health screenings should include inquiry regarding pregnancy and related conditions.

Example: “Screening is performed on all inmates upon arrival at the intake facility…The receiving screening form…inquires as to the inmate’s…possible, current, or recent pregnancy…” – NCCHC Standards for Health Services in Jails (2018)

Pregnancy testing at intake.

Summary of recommended guidance: Sources that have guidance generally agree that pregnancy testing should be conducted on newly detained women of childbearing age, but some provide additional guidance on when this should be done, and this may vary.

Example: “All women at risk for pregnancy should be offered a pregnancy test within 48 hours of admission…A simple approach would be to offer pregnancy testing to all women under the age of 55.” – Pregnancy and Postpartum Care in Correctional Settings (2018)

Example: “…medical providers should continue to offer pregnancy tests to every female of child-bearing age who is newly detained…” – Report of the DHS Advisory Committee on Family Residential Centers (2016)

Access to abortion.

Summary of recommended guidance: Sources that have guidance generally agree abortion services should be offered to detained pregnant women, with one source providing additional details, including swift facilitation of a woman’s choice of termination and non- interference of outside bodies in the decision.

Example: “Pregnancy termination is generally to be performed as safely and as early in pregnancy as possible…Termination of pregnancy should not depend on whether or not the specific procedure is available on site. Each woman will decide what option to choose…this decision is to be made without undue interference by outside bodies, including governmental bodies.” – Report of the DHS Advisory Committee on Family Residential Centers (2016)

Provision of prenatal care.

Summary of recommended guidance: Sources that have guidance generally agree that some form of prenatal care should be provided to detained pregnant women, but differ on the level of specificity for the standard of care, from stating simply that prenatal care be provided to specifying requirements including regularly scheduled obstetric care and access to 24-hour emergency care.

Example: “Incarcerated women who wish to continue their pregnancies should have access to readily available and regularly scheduled obstetric care, beginning in early pregnancy and continuing through the postpartum period. Incarcerated pregnant women also should have access to unscheduled or emergency obstetric visits on a 24-hour basis.” – American College of Obstetricians and Gynecologists Committee Opinion: Health Care for Pregnant and Postpartum Incarcerated Women and Adolescent Females (2016)

Example: “Prenatal care in correctional facilities must reflect national standards, including visit frequency with a qualified prenatal care provider, screening and diagnostic tests, and referrals for complications.” – Pregnancy and Postpartum Care in Correctional Settings (2018)

Provision of postnatal care.

Summary of recommended guidance: Sources that have guidance generally agree that the provision of postnatal care be provided to women who give birth. However, they vary in their specifics. For example, some specifically state that lactation service or postnatal birth control should be provided. One source also recommends specific forms of accommodation to aid postnatal recovery.

Example: “…appropriate accommodations should be made, such as allowing women to rest when needed…Discharge instructions from the hospital, which may include postpartum blood pressure monitoring or diabetes screening, should be adhered to.” – Pregnancy and Postpartum Care in Correctional Settings (2018)

Example: “Allow immediately postpartum women to breastfeed their babies and have lactation support services from the hospital.” – NCCHC Position Statement on Breastfeeding in Correctional Settings (2018)

Provision of perinatal/labor care.

Summary of recommended guidance: Sources that have guidance generally agree a pregnant woman should be transported to a hospital if there are signs of labor. Some sources state that detention staff be trained in emergency delivery in the event of a delivery occurring in the facility, away from professional care.

Example: “Due to the time necessary to arrange transport to a nearby hospital, there is a low threshold to send pregnant inmates out for evaluation of a labor when signs or symptoms of labor or ruptured membranes are present… Any facility that houses pregnant women should have an emergency delivery kit available on-site, and health staff should be trained in its use in the event that a delivery occurs in the facility.” – Pregnancy and Postpartum Care in Correctional Settings (2018)

Example: “Having a preexisting arrangement to have the babies of incarcerated women delivered at a local hospital reduces confusion and uncertainty when a woman goes into labor.” – National Women’s Law Center Women Behind Bars: A state-by-state report card and analysis of federal policies on conditions of confinement for pregnant and parenting women and the effect on their children (2010)

Mental health services and counseling for pregnant women.

Summary of recommended guidance: Sources that have guidance generally agree that pregnant and postpartum women should have access to mental health/counseling services.

Example: “Pregnant inmates are given comprehensive counseling and care in accordance with national standards and their expressed desires regarding their pregnancy.” – NCCHC Standards for Health Services in Jails (2018)

Care for pregnant women with substance use disorder.

Summary of recommended guidance: Sources that have guidance generally agree that addicted pregnant women should have access to screening and specialized addiction-treatment programs.

Example: “Screening for drug and alcohol use is a first step and is followed with referral to treatment. For women who report opiate use, the standard of care is not to detoxify from opiates during pregnancy due to the fetal risks of withdrawal. Rather the standard of care is to provide…methadone or buprenorphine…” – Pregnancy and Postpartum Care in Correctional Settings (2018)

Example: “The standard of care for pregnant women with [opioid use disorder] is and should therefore be offered/continued for all pregnant detainees and incarcerated individuals.” – Joint Public Correctional Policy on the Treatment of Opioid Use (2018)

HIV care for pregnant women.

Summary of recommended guidance: Sources that have guidance generally agree that pregnant women should have access to testing and treatment of HIV for the benefit of both the mother and child.

Example: “The Centers for Disease Control and Prevention recommends universal opt-out HIV screening for pregnant women; with early detection, prevention of mother-to-child transmission can be accomplished…” – Pregnancy and Postpartum Care in Correctional Settings (2018)

Vaccinations for pregnant women.

Summary of recommended guidance: Sources that have guidance generally agree that vaccines recommended for pregnant women be provided to detainees in accordance with accepted medical guidelines.

Example: “Current recommendations are that all pregnant women should be vaccinated with the flu vaccine during flu season and tetanus, diphtheria, and pertussis during the third trimester, regardless of whether they were vaccinated outside of pregnancy.” – NCCHC Standards for Health Services in Jails (2018)

Example: “Vaccines related to pregnancy should be offered pursuant to CDC guidelines…” – Report of the DHS Advisory Committee on Family Residential Centers (2016)

Prenatal vitamins.

Summary of recommended guidance: The sources that have guidance generally agree that prenatal vitamins should be provided to pregnant women, and some sources state that prenatal vitamins should be provided to breastfeeding women.

Example: “Pregnant women must also receive prenatal vitamins that contain, among other essential vitamins and minerals, 400mcg to 800mcg of folic acid... Women with documented anemia (hemoglobin<11) should receive additional iron supplementation.” – Pregnancy and Postpartum Care in Correctional Settings (2018)

Example: “Appropriate nutrition and prenatal vitamins should be given to lactating women…” – NCCHC Standards for Health Services in Jails (2018)

Nutrition for pregnant women.

Summary of recommended guidance: Sources that have guidance generally recommend special nutrition regimens for pregnant women, with varying degrees of specificity, ranging from recommending the use of supplements broadly to specifying required nutrients such as folic acid and calcium and extra calories in the form of additional meals, larger meals, or food between meals, and in some cases specifying that these requirements also apply for postpartum women.

Example: “Pregnant and postpartum women have additional nutritional needs and should be counseled on the importance of adequate nutrition. Diets provided by correctional institutions should be specialized to the women’s needs and be rich in whole grains, calcium, and fruits and vegetables. In the second and third trimesters, women require an additional 300 calories per day…” – Pregnancy and Postpartum Care in Correctional Settings (2018)

Special accommodations for pregnant women.

Summary of recommended guidance: Sources that have guidance generally agree that accommodations should be provided to pregnant women. Some sources specify accommodations such as appropriate programming and hygiene for pregnant women and nursing mothers, appropriately adjusted work assignments and exercise, and bottom bunks.

Example: “Activity for pregnant women must take into account the physical constraints of being in a correctional facility. All pregnant women must have a bottom bunk so that they do not risk falling from a top bunk. Certain work assignments may be inappropriate…Work assignments should be adjusted accordingly. In the absence of medical or obstetric complications, 30 minutes or more of moderate exercise a day on most, if not all, days of the week is recommended.” – Pregnancy and Postpartum Care in Correctional Settings (2018)

Segregation of Pregnant Women.

Summary of recommended guidance: Sources that have guidance generally agree that pregnant women should not be placed in segregation, though some suggests this could be necessary in certain cases.

Example: “Women who are pregnant, who are postpartum, who recently had a miscarriage, or who recently had a terminated pregnancy should not be placed in restrictive housing…In very rare situations, a woman who is pregnant, is postpartum, recently had a miscarriage, or recently had a terminated pregnancy may be placed in restrictive housing as a temporary response to behavior that poses a serious and immediate risk of physical harm…” – U.S Department of Justice Report and Recommendations Concerning the Use of Restrictive Housing (2017)

Use of Restraints on Pregnant Women.

Summary of recommended guidance: Sources that have guidance generally agree that restraints generally should not be used on a pregnant woman, except when necessary. Some sources indicate that if restraints are necessary, it should be well documented and require approval and assessment from a senior official and/or medical professional. Some sources specify the types of restraints that should never be used including abdominal restraints, handcuffs behind the back, and leg and ankle restraints.

Example: “Restraint of pregnant inmates during labor and delivery should not be used. The application of restraints during all other pre- and postpartum periods should be restricted as much as possible and, when used, done so with consultation from medical staff and in the least restrictive means possible. All uses of restraints in pregnant inmates must be documented and reviewed.” – NCCHC Position Statement: Restraint of Pregnant Inmates (2015)

Example: “Policies and procedures on the use of restraints on pregnant women and girls under correctional custody should be developed collaboratively by correctional leaders and medical staff who have knowledge about the potential health risks…The use of restraints on pregnant women and girls under correctional custody should be limited to absolute necessity.” - U.S. Department of Justice, Bureau of Justice Assistance: Best Practices in the Use of Restraints with Pregnant Women and Girls Under Correctional Custody (2014)

Record Keeping on Pregnant Women Actions.

Summary of recommended guidance: Sources that have guidance generally agree that accurate records of detention regarding pregnant women should be kept, with varying levels of specificity ranging from noting that records should be kept for incidents of restraint to specifying how documentation is kept and reviewed. One source notes that medical records should also be easily accessible for offsite care providers.

Example: “If detention continues ICE should ensure…reporting of detention to ICE Headquarters and continued review of the need to detain.” – Report of the DHS Advisory Committee on Family Residential Centers (2016)

Example: “Obstetrician-gynecologists and other obstetric care providers of antepartum care should be able to either primarily provide or easily refer to others to provide a wide array of services. These services include… imely transmittal of prenatal records to the site of the woman’s planned delivery so that her records are readily accessible at the time of delivery.” – American College of Obstetricians and Gynecologists Guidelines for Perinatal Care, Eighth Edition (2017)

Appendix V: U.S. Customs and Border Protection Policies on Care for Pregnant Women

U.S. Customs and Border Protection (CBP) and its components, Border Patrol and the Office of Field Operations (OFO), have several policies and standards that address the care and treatment of pregnant women in their custody. Specifically, these include the following:

CBP: National Standards on Transport, Escort, Detention, and Search (2015)

OFO: Personal Search Handbook (2004)

OFO: Directive: Secure Detention, Transport and Escort Procedures at Ports of Entry, CBP Directive No. 3340-030B (2008)

Border Patrol: U.S. Border Patrol Policy: Hold Rooms and Short Term Custody (2008)

Summaries of these policies and standards are provided below, along with the titles of the policies or standards on which each summary is based.

Processing and holding. Officers and agents will consider pregnancy when expediting processing of vulnerable detained persons and when placing detained persons with others in hold rooms and holding facilities.

Secure Detention, Transport and Escort Procedures at Ports of Entry (2008) and U.S. Border Patrol Policy: Hold Rooms and Short Term Custody (2008)

Mental health services and counseling for pregnant women. If an agent or officer observes signs of mental illness, it should be reported to a supervisor and appropriate medical care be provided or sought, including calling emergency services in the event of an emergency.

Transport, Escort, Detention, and Search (2015)

Nutrition for pregnant women. Pregnant detainees should be offered a meal every six hours they are in detention and have access to snacks, milk, or juice at all times.

Transport, Escort, Detention, and Search (2015); Secure Detention, Transport and Escort Procedures at Ports of Entry (2008); and U.S. Border Patrol Policy: Hold Rooms and Short Term Custody (2008)

Special accommodations for pregnant women. Reasonable accommodations should be made for pregnant women, including placement in the least restrictive appropriate setting. If circumstances permit, pregnant women should not be placed in hold rooms or other secure areas, but instead in an open area under supervision.

Transport, Escort, Detention, and Search (2015); Secure Detention, Transport and Escort Procedures at Ports of Entry (2008); and U.S. Border Patrol Policy: Hold Rooms and Short Term Custody (2008)

Use of restraints on pregnant women. Officers and agents should not use restraints on pregnant women unless they demonstrate or threaten violence, have a criminal and/or violent history, or there is an articulable escape risk. Even if restraints are used, pregnant detainees are not to be restrained face-down, on their backs, or with a belt that constricts the area of her pregnancy. Pregnant women can never be restrained while in active labor or delivery. All use of restraints must be documented.

Transport, Escort, Detention, and Search (2015)

Record keeping on pregnant women actions. All physical interactions with pregnant women must be recorded after they occur. Any medical emergency must be recorded as soon as practical after emergency services have been contacted. Further, Border Patrol agents must create a booking record for persons detained and the record must include a medical annotation for conditions requiring care, including pregnancy.

Transport, Escort, Detention, and Search (2015) and U.S. Border Patrol Policy: Hold Rooms and Short Term Custody (2008)

Appendix VI: U.S. Immigration and Customs Enforcement Inspection Results for Care of Pregnant Women

U.S. Immigration and Customs Enforcement (ICE) uses various inspections for accessing facilities’ compliance with policies and detention standards—the frequency and focus of which vary. Some inspections also include pregnancy-related performance measures, such as a measure assessing whether a pregnancy test was performed at intake. We analyzed reports and data from five ICE inspections that address compliance with pregnancy-related policies and detention standards from 2015 through June 2019—the most recent data available at the time of our review. We selected these inspections because they review some aspect of the care provided to pregnant women. These inspections address compliance at ICE detention facilities where on-site medical care is provided by both ICE Health Service Corps (IHSC) as well as other entities (non-IHSC facilities).

Pregnancy-related Performance Measures at IHSC-staffed and non- IHSC Facilities

We reviewed results from IHSC’s inspections of IHSC-staffed and non- IHSC facilities, which includes pregnancy-related performance measures. We found that instances of non-compliance occurred at 16 facilities subject to a range of detention standards. Three of these facilities were IHSC-staffed, and 13 were non-IHSC. Table 10 shows results from December 2016 through March 2019.

Pregnancy-related Performance Measures at IHSC-staffed Facilities

We reviewed information on pregnancy-related performance measures reported by facilities staffed by IHSC. Table 11 shows results from fiscal years 2015 through 2018.

Although the table shows average annual compliance across all IHSC- staffed facilities, variation exists between facilities, and over time. For example, in fiscal year 2018, one facility improved its performance on the measure of whether prenatal vitamins were prescribed from 33 percent compliance in the first quarter to 100 percent compliance in the second quarter. In addition, in fiscal year 2018, facilities’ compliance with each measure ranged as follows:

Obstetrician-gynecologist consult ordered is documented within 7 business days of identification: 50 to 100 percent (average 80 percent)

Obstetrician-gynecologist scheduled appointment time documented within 7 business days of identification: 15 to 100 percent (average 75 percent)

Detainee education documented at each encounter: 0 to 100 percent (average 79 percent)

Records reviewed by provider after obstetrician appointment: 0 to 100 percent (average 79 percent)

Appropriate labs ordered if not obtained from obstetrician- gynecologist: 50 to 100 percent (average 79 percent)

Deficiencies, Recommendations, and Corrective Actions for ICE Inspections of Pregnancy- related Detention Standards

Three additional ICE inspections identified 19 findings at 13 facilities related to the care of pregnant women. All of the findings occurred at non- IHSC facilities. Table 12 provides additional information on the findings and corrective actions that facilities reported taking.

Appendix VII: Summary of Interviews with Pregnant Women Regarding Their Care in Department of Homeland Security Custody

We interviewed ten pregnant women who were detained at three of the four U.S. Immigration and Customs Enforcement (ICE) facilities we visited, including facilities staffed by ICE Health Service Corps (IHSC- staffed) and non-IHSC facilities. We interviewed an additional four pregnant women at a local shelter in Texas which provides temporary accommodations to those in need of housing after their release from DHS custody. These four women may not have known which agency they had been detained or held by prior to entering the shelter. As a result, their perspectives are listed separately in the table below from the 10 women with whom we spoke at ICE detention facilities. Table 13 summarizes the perspectives of these 14 pregnant women. Although these interviews are not generalizable and may not be indicative of the care provided at all detention facilities, they provided us with perspectives on the care provided to pregnant women. We did not independently verify statements made by these 14 women we interviewed.

Appendix VIII: Complaints Regarding U.S. Immigration and Customs Enforcement’s and U.S. Customs and Border Protection’s Care of Pregnant Women

We analyzed and categorized complaints that detainees, family members, non-governmental organizations, or other parties submitted to various entities from January 2015 through April 2019 regarding U.S. Immigration and Customs Enforcement’s (ICE) and U.S. Customs and Border Protection’s (CBP) care of pregnant women. Specifically, we reviewed complaints from Department of Homeland Security’s (DHS) Office for Civil Rights and Civil Liberties (CRCL), DHS’s Office of Inspector General, and ICE Health Service Corps (IHSC). We identified a total of 107 complaints—54 regarding ICE, 50 regarding CBP, and three regarding both ICE and CBP.

Complaints against ICE

We identified 54 unique complaints submitted from January 2015 through April 2019 regarding ICE’s care of pregnant women. Each of the 54 complaints may identify more than one area of concern, and as such we identified 104 concerns. The most common concern was that ICE allegedly did not provide medical care or the medical care was not quality or timely.

As previously described in this report, the investigating agency determined that one complaint was substantiated and one complaint was partially substantiated. The remaining complaints were either still open as part of an on-going investigation, unsubstantiated by the investigating agency, or the complaint was not substantiated or unsubstantiated for a variety of reasons. Table 14 provides additional information on the number and types of concerns identified in the 54 complaints regarding ICE’s care of pregnant women.

Complaints against CBP

We identified 50 unique complaints submitted from January 2015 through April 2019 regarding CBP’s care of pregnant women. Each of the 50 complaints may identify more than one area of concern, and as such we identified 81 concerns. The most common concern was that pregnant women had allegedly been physically, verbally, or otherwise mistreated.

As previously described in this report, the investigating agency determined that one complaint was substantiated. The remaining complaints were either still open as part of an on-going investigation, unsubstantiated or partially unsubstantiated by the investigating agency, the complaint was not substantiated or unsubstantiated for a variety of reasons, or the complaint described an event that occurred, such as a miscarriage, but did not allege that mistreatment or improper care occurred. Table 15 provides additional information on the number and types of issues identified in the 50 complaints regarding CBP’s care of pregnant women.

Appendix IX: Comments from the Department of Homeland Security

Appendix X: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

In addition to the contact named above, Dawn Locke (Assistant Director), Tracey Cross (Analyst-in-Charge), Hiwotte Amare, David Bieler, Christine Davis, Elizabeth Dretsch, Kelsey Griffiths, Eric Hauswirth, Sasan J. “Jon” Najmi, Sean Sannwaldt, and Adam Vogt made key contributions to this report.