Immigration Detention: Additional Actions Needed to Strengthen Management and Oversight of Facility Costs and Standards
Released: 2014-10-10T00:00:00

Letter

Background

Legislation and Requirements Pertaining to Immigration Detention

The Immigration and Nationality Act, as amended, provides ICE with broad authority to detain aliens believed to be removable while awaiting a determination of whether they should be removed from the United States as well as aliens ordered removed, and mandates that ICE detain certain categories of aliens. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 increased the number of aliens subject to mandatory detention, resulting in the former Immigration and Naturalization Service expanding the number of detention beds available to meet the mandate. The Intelligence Reform and Terrorism Prevention Act of 2004 directed the Secretary of Homeland Security to further increase the number of detention beds by 8,000 annually starting in fiscal year 2006 and continuing through fiscal year 2010. Subsequently, the House Appropriations Committee began incorporating a mandate into the annual appropriations bill. The fiscal year 2014 appropriation act requires DHS to maintain 34,000 detention beds per day.

Detention Population, Facility Types, and Locations

Immigration custody is civil, not criminal, detention, and is not to be punitive; rather, ICE is to confine detainees for the administrative purpose of holding, processing, and preparing them for removal. According to ICE data, during fiscal year 2013, the agency housed an average of 32,805 detainees in its detention facilities each day and held detainees for an average of about 27 days.women from a wide variety of countries and with criminal and noncriminal ICE detainees include a mix of men and backgrounds. When detention facilities admit aliens, they are to use a classification system that separates detainees by threat risk and special vulnerabilities by assigning them a custody level of low, medium, or high. From fiscal years 2010 through 2013, about 44 percent of ICE detainees were of a low custody level, 41 percent were of a medium custody level, and 15 percent were of a high custody level.

ERO oversees the confinement of ICE detainees in approximately 250 detention facilities that it manages in conjunction with private contractors or state or local governments, of which 166 were authorized to house detainees for over 72 hours, as of August 2013. Over 90 percent of the facilities are operated under agreements with state and local governments and house about half of ICE’s total detention population, together with, or separately from, other confined populations. The remaining facilities house exclusively ICE detainees and are operated by a mixture of private contractors and ICE, state, and local government employees. Table 1 presents information about the number and types of facilities that ICE uses to house detainees, the entities that own and operate them, and the percentage of the detainee population confined in each facility type.

ICE’s detention facilities are located across the United States. In general, facilities that house the most detainees and exclusively ICE detainees are concentrated in the states along the southern United States border, while facilities that house fewer detainees are more evenly distributed across the nation. Figure 1 presents the locations of ICE’s over-72-hour facilities by size and type.

The number of admissions to detention and related appropriations has more than doubled since 2005, as shown in figure 2. In fiscal year 2014, Congress provided about $2.8 billion for detention and removal operations, which include ICE’s maintenance of 34,000 detention beds, as required by law.

ICE primarily uses three sets of national detention standards with varying requirements to govern the conditions of confinement in its detention facilities. ICE establishes the set of standards applicable to each detention facility through an individual contract or agreement with the facility. Accordingly, different facilities are governed by different standards. Table 2 provides information about each of these three sets of standards.

Incomplete ICE Data and Limitations in Controls to Track and Manage Costs Limit Assessment of Cost Variances across Detention Facility Types

ICE Does Not Have Complete Data for Managing Detention Costs and Operations

ICE has two offices, OBPP and ERO Operations Support Division, that use different methods to collect and assess data on detention expenditures and costs for different purposes; however, these two methods do not provide ICE with complete data for managing detention costs across facilities and facility types. First, for the purposes of developing ICE’s annual budget requests for detention, ICE’s OBPP developed a method to estimate total detention costs per detainee per day. ICE refers to this as the bed-rate—or the total cost to house 1 detainee for 1 day. OBPP estimates this bed rate for budgetary purposes by conducting standardized, repeatable queries of ICE’s financial management system—the Federal Financial Management System. These standardized queries provide ICE with an average overall bed rate and the average bed rate for each of ICE’s 24 areas of responsibility.However, ICE officials stated that through fiscal year 2013 these queries did not produce data that can be used to track or manage costs for individual facilities or facility types because of errors in how ICE field office personnel enter data into ICE’s Federal Financial Management System and limitations in the system that make it difficult for ICE to accurately record expenditures for all individual facilities. Specifically, OBPP officials said that field office personnel manually enter financial codes for each expenditure to categorize and provide descriptive information about that expenditure—such as if it was for detention operations—which allows ICE to link expenditures to specific facilities, among other things. However, OBPP officials have found significant coding errors in these data fields for costs incurred through fiscal year 2013. For example, according to the officials, charges for 5 facilities operating under intergovernmental service agreements (IGSA) in five states were erroneously assigned to a SPC, because, according to ICE officials, the facilities were in different counties with the same name. In addition, while ICE could link expenditures to individual facilities of certain types—specifically SPCs, contract detention facilities (CDF), and facilities operating under a dedicated intergovernmental service agreement (DIGSA)—in its Federal Financial Management System in fiscal year 2013, it could not link expenditures to individual facilities operating under an IGSA because there were not codes in ICE’s Federal Financial Management System to link expenditures to IGSAs during fiscal year 2013. According to ICE officials, in fiscal year 2014, ICE introduced new financial coding processes. These processes are intended to address this limitation and allow costs to be linked to all types of facilities, including IGSA facilities; however, as ICE has recently begun to implement these new processes, it is too soon to determine the extent to which they will provide ICE with more reliable cost data across individual facilities and facility types.

Second, for the purposes of tracking monthly costs at individual facilities, among other purposes, ICE ERO’s Operations Support Division—the budget office within ERO—developed a mechanism to manually track monthly costs by facility, called the Contract Financial Monitoring File, according to ICE ERO Operations Support Division officials. Specifically, the Operations Support Division developed the Contract Financial Monitoring File to monitor obligations and monthly expenditures related to the primary contract for each detention facility using information manually taken from facility invoices and contracts in addition to data in the Federal Financial Management System, according to ERO officials and Contract Financial Monitoring File guidance. The Operations Support Division developed this manual tool to work around the limitations in the Federal Financial Management System, which, in addition to those limitations discussed above, does not automatically interface with ICE’s invoice management system, according to ICE officials. Operations Support Division officials said they use the Contract Financial Monitoring File data to determine how much funding to allocate to each facility and to track expenditures and contract pricing at a single facility over time, among other uses. However, these data have limitations that preclude using the data to track and manage costs across individual facilities and facility types. For example, the Contract Financial Monitoring File data do not consistently or completely capture costs for facilities because some facility contracts include services such as medical care and transportation, while other contracts do not. For facilities with contracts that do not include such services, ICE or service providers contract with a third-party to provide these services. As a result, ICE officials said that some higher-cost facilities may therefore be providing services that are not provided by lower-cost facilities, or that are provided and billed by third parties. For example, ERO officials said that ICE provides medical care at most CDFs either through the ICE Health Service Corps or through a separate third-party contract with a health care provider, ICE’s medical costs paid instead of directly through the facility operator.for through headquarters—which, according to ICE officials totaled about $157.6 million in fiscal year 2013—are not reflected in facility invoice costs, and therefore are not included in the Contract Financial Monitoring File as costs to those individual facilities. Other facilities that directly provide these services would reflect these costs in facility invoices, and these costs would therefore be tracked separately in the Contract Financial Monitoring File. Further, some facilities provide transportation for detainees as part of the primary detention contract, and therefore the Operations Support Division captures these costs—which composed up to 47 percent of total facility expenditures in fiscal year 2013—for each facility in the Contract Financial Monitoring File. However, at other facilities, transportation services are not included in the facility contract. For these facilities, ICE provides transportation services for detainees through separate contracts with transportation providers, which ERO tracks separately, and does not link these costs to individual facilities in the Contract Financial Monitoring File. In addition, the file’s cost data do not include ICE overhead costs that vary across facilities. These costs include, among other things, shared utilities and telecommunication charges that occur in the field but are paid for through ICE service-wide contracts, according to an ICE official. As a result of these limitations, the Contract Financial Monitoring File data cannot be used for tracking and managing cost data across individual facilities and facility types.

Since 2009, ICE has taken some steps to strengthen how it tracks and manages detention costs and expenditures. However, we identified limitations in ICE’s controls and processes in three areas. These limitations relate to (1) collecting and maintaining cost data, (2) ensuring cost is considered in placing aliens in detention facilities, and (3) preventing improper payments to detention facility operators.

Collecting and maintaining cost data. ICE is in the process of planning to upgrade its new financial management system; however, ICE does not have a target time frame for when this upgrade will occur, according to ICE officials. The agency, however, has taken steps to manually track and manage costs, referred to as manual work-arounds. First, ICE has required field office personnel to use a new coding system to link all financial transactions entered into the Federal Financial Management System to individual facilities, including IGSAs, to help ICE more reliably track costs. According to ICE OBPP officials, this requirement began in fiscal year 2014. Second, ICE has taken steps to help ensure that expenditures are correctly applied to obligations in the Federal Financial Management System. These steps include developing standard operating procedures for linking obligations to expenditures and, beginning in the third quarter of fiscal year 2014, requiring personnel to input a specific period of performance for each facility expenditure, according to ICE officials. Finally, as a manual work-around for estimating transportation costs, ICE has developed a statement of work to study transportation costs to optimize ICE’s ground and air transportation networks and identify any inefficiencies in the current process.

Although these manual work-arounds are positive steps that should help strengthen the completeness and reliability of ICE data on detention facilities costs, ICE has not assessed the extent to which these manual work-arounds are sufficient to address data limitations and allow it to reliably compare costs among and across facilities and facility types, according to ICE officials. ICE officials said they have not conducted such an assessment because they have focused on higher priorities, such as developing a national bed rate to support the agency’s annual budget request. In addition, ICE has not assessed the extent to which additional internal controls are needed to address the challenges we identified and collect and maintain more complete data on costs and expenditures for individual facilities. For example, as previously discussed, ICE identified data entry errors made by staff in entering cost data into the Federal Financial Management System. ICE also identified challenges in tracking and maintaining complete data on all costs or expenditures associated with individual facilities, including costs for medical care and transportation, for example. ICE has not assessed the extent to which additional controls, such as a process to check for data entry errors, could help the agency track and maintain more complete data on detention facility costs, as ICE stated that the agency recently implemented the manual work-arounds.

The ICE Strategic Plan FY2010-2014 states that ICE will proactively identify and correct financial and operational risks and continually strengthen internal controls to safeguard the public’s resources and trust. ICE has strengthened some controls, but it has not assessed the extent to which it has appropriate internal controls in place for all tracking and reporting of financial information to link costs to individual facilities. Standards for Internal Control in the Federal Government notes that internal controls are an integral part of each system that management uses to regulate and guide its operations, and that control activities are an integral part of an entity’s planning, implementing, review, and accountability for stewardship of government resources and achieving effective results. Furthermore, the standards state that control activities, which include a wide range of diverse actions and maintenance of related records, need to be clearly documented and help to ensure that all transactions are completely and accurately recorded. Assessing the extent to which ICE’s manual work-arounds could provide ICE with more complete data on facility costs and the extent to which additional controls may be needed could better position ICE to have more reliable data for tracking and managing costs across facilities and facility types. Moreover, as ICE is in the process of planning for upgrading its financial management system, assessing the extent to which the appropriate internal controls are in place for tracking and managing detention facility costs and developing any additional controls deemed necessary could help provide ICE with more complete data to help ensure that ICE is accurately tracking costs and has the data needed to appropriately and effectively manage detention costs.

Ensuring cost is considered in placing aliens in detention facilities. ICE ERO officials stated that field office personnel are to take cost into account, as appropriate, when making detainee placement decisions; however, ICE headquarters does not have a process or controls in place to ensure that field offices are appropriately considering cost in order to promote efficient field office management. ERO field offices are responsible for deciding where to house detainees within their areas of responsibility and are to consider a variety of factors, including cost, when making detainee placement decisions, according to ICE officials. ICE ERO officials stated that other factors that may be more important than cost in making placement decisions include whether (1) the detainee has medical needs that can be best served by a particular facility, (2) the detainee has an attorney or family located near a particular facility, and (3) there are transportation requirements to bring the detainee to the facility.

ERO officials stated that field offices are to place detainees in facilities that have guaranteed minimum populations when possible, as ICE pays In addition, for these beds regardless of whether or not they are used.facilities that have guaranteed minimums tend to have tiered pricing— meaning the contractor charges a lower per diem for each detainee housed above an agreed-upon guaranteed minimum number of detainees and below the facility’s full capacity—than at other facilities that do not have guaranteed minimums.

In 2009, the DHS Office of the Inspector General reported that ICE had not fully implemented its National Detention Management Plan, resulting in mixed progress in moving toward a more cost-effective strategy for acquiring detention bed space.the agency has taken steps to ensure that cost is taken into account, as appropriate, in deciding where to house detainees. For example, ICE ERO headquarters develops daily capacity reports that show the percentage of capacity filled at SPCs, CDFs, DIGSAs, and large IGSAs. According to ICE ERO headquarters officials, if they notice that a particular area of responsibility has open space in facilities with guaranteed minimums, they can call the field office director to find out why the guaranteed minimum is not being met.

Since then, according to ICE officials, However, our analysis of ICE data showed that in some cases ICE did not fill all guaranteed minimum bed spaces, effectively paying for beds that the agency did not use. Specifically, our analysis of the ADP and ICE’s contractual guaranteed minimums at selected dedicated facilities for fiscal years 2011 through 2013 showed instances where ICE paid for beds it did not use. For example, our analysis showed that the ADP at a CDF had fewer detainees than the guaranteed minimum for each fiscal year, 2011 through 2013, which is the equivalent of about $3.6 million in bed space that ICE did not use, based on the per diem rates for this period. According to ICE officials, the guaranteed minimum had been negotiated with the facility by USMS, which previously used the facility, and ICE renegotiated a lower guaranteed minimum in fiscal year 2012. However, we noted that the ADP in fiscal years 2012 and 2013 remained below the revised guaranteed minimum number of beds. ERO officials also said that during that timeframe ICE moved detainees from the CDF to a new facility that ERO opened nearby that was intended to better meet ICE’s civil detention goals.

We also found instances through fiscal year 2014—as of July 2014—in which ICE placed the guaranteed minimum of detainees in facilities, but did not take advantage of the tiered pricing structure, which would have provided less costly bed rates for detainees placed above the guaranteed minimum. For example, at one CDF, ICE met the guaranteed minimum each year from fiscal years 2011 through 2013 and also housed additional detainees at the facility, for whom ICE was charged a lower bed rate because the facility has a tiered pricing structure. However, the number of detainees housed over the guaranteed minimum also decreased each year over that time period. Therefore, because ICE did not maximize the number of detainees over and above the guaranteed minimum, the average cost per detainee at the facility increased from $133 per day in 2012 to $135 per day in 2013. analysis, ICE’s bed space procurement study—published in April 2014— found that at certain SPCs, ICE underutilized facilities with guaranteed minimums. Therefore ICE could conserve resources by better filling the capacity above the guaranteed minimum, as it costs ICE less per detainee to house detainees in these facilities.

As described above, these costs may not include the full costs of detention at that facility. ICE ERO Operations Support Division did not have complete data for fiscal year 2011. guidance, ERO officials said they will be working with ICE OBPP to develop and share cost reports and facility utilization reports with field office management. While ICE’s plan to develop and issue this guidance is a positive step, as of August 2014, ICE did not have plans to monitor the extent to which field offices consider and implement cost as a factor in making detainee placement decisions over time, according to ICE officials. In particular, ICE’s daily capacity reports are intended to provide information to ICE personnel regarding bed space availability on a daily basis. However, ICE ERO does not currently use these reports or other data to monitor and ensure field offices are appropriately considering cost in making detainee placement decisions over time. The ICE strategic plan for fiscal years 2010-2014 notes that to expend government resources wisely, ICE will work to increase efficiency in every step of the removal process—from apprehension through removal. Furthermore, Standards for Internal Control in the Federal Government notes that managers need to compare actual performance with planned or expected results throughout the organization and analyze significant differences, and should monitor the quality of performance over time. Developing an oversight mechanism to ensure that field offices comply with guidance to place detainees, whenever possible, in facilities with guaranteed minimums and tiered pricing could provide ICE with better assurance that it is cost-effectively managing detainee placement.

Preventing improper payments to detention facility operators. ICE has taken steps to strengthen internal controls over the process used to pay contractors for detention services; however, ICE ERO remained designated as at high risk for making improper payments in fiscal year 2013 by DHS. ICE uses manual internal controls over the process to review invoices and pay contractors for detention services. Contractors at all ICE detention facilities are to receive payment for providing detention services by submitting invoices to ICE for review and payment. Contractors are to submit summary invoices to the Burlington finance center and all required invoice support documentation to the contracting officer representative (COR) at the ICE ERO field office overseeing the facility. Burlington finance center personnel are to provide an initial review of the summary invoice to ensure that the necessary contract information is correctly recorded and if it is, are to notify the COR that the invoice is available for approval. The COR is then required to review the invoice to verify that it accurately reflects work completed in accordance with requirements in the contract. The COR is also to ensure that all required supporting documentation is received prior to approving an invoice.

The Improper Payments Information Act (IPIA) of 2002, the Improper Payments Elimination and Recovery Act (IPERA) of 2010, and the Improper Payments Elimination and Recovery Improvement Act (IPERIA) of 2012 require agencies to review payments made by their components in order to identify those susceptible to significant improper payments and to carry out cost-effective programs for identifying and recovering overpayments made to contractors. Improper payments are calculated as the percentage of the total dollar value of payments made in each year that were improper. For fiscal year 2013, a significant improper payment was defined as exceeding $10 million of all program or activity payments and 1.5 percent of program payments, or exceeding $100 million alone. IPERIA of 2012 applied these thresholds to fiscal year 2014 and each fiscal year thereafter.

DHS’s annual review of component improper payments has highlighted that ICE ERO had unacceptable levels of improper payments. ICE ERO reduced improper payment amounts by nearly half from fiscal year 2011 to 2012, but remains designated as at high-risk for making improper payments. DHS reported that in fiscal year 2012 testing of fiscal year 2011 payments, ICE ERO made an estimated $133 million in improper payments (approximately 8 percent of all payments), and fiscal year 2013 testing of fiscal year 2012 payments showed that ICE made an estimated $73 million in improper payments (approximately 4 percent of all payments).

ICE has taken several steps to address the primary reasons for improper payments. ICE’s analysis of the findings revealed that most of ERO’s improper payments were caused by either unresolved discrepancies between the invoice and contract documents or that ERO personnel responsible for invoice approval did not ensure sufficient documentation had been provided by contractors to support the payment of invoices. To reduce the improper payment rate, ICE ERO issued requirements aimed at standardizing the invoice submission and review process across facilities, and strengthening the process, among other actions. These requirements include a requirement that facilities provide an itemized list of charges and list contract line items on invoices, among other things. According to ICE officials, as of September 2013, ICE had updated all facility contracts with the new requirements, and invoices submitted by facilities for services in December 2013 and later should meet the new requirements.

However, our review of a sample of 31 of 158 invoices from 15 facilities for detention services provided in December 2013 showed that corrective actions taken by DHS and ICE had not yet fully addressed issues of the completeness and accuracy of invoices and supporting documentation submitted by detention contractors. Specifically, our review showed that 13 invoices from 6 facilities did not include all invoice elements required in ICE’s new guidance. Examples of missing elements included unit prices for mileage and the contractor’s address. In addition, our analysis showed that 20 invoices from 11 facilities did not include all required supporting documentation, as specified in ICE’s new invoice submission and review guidance. Invoices for transportation charges were the type of invoice that was most commonly missing supporting documentation. For example, invoices included the dates detainees were transported, but did not include elements such as the names of detainees, or the number of detainees transported.

Standards for Internal Control in the Federal Government notes that control activities should be efficient and effective in accomplishing the agency’s control objectives, and should occur at all levels of the agency. The standards also note that the responsibility for good internal control rests with managers, and that management sets the objectives, puts the control mechanisms in place, and monitors and evaluates the controls. In June 2014, ICE issued a policy manual to provide general instruction and guidance to CORs in recording the receipt and acceptance of goods and services, including the processing of contractor invoices, and plans to further assess the need for additional controls through April 2015. Such an assessment of internal controls is necessary as ICE ERO has remained at high risk for improper payments despite issuance of past guidance. By taking additional steps to help ensure that personnel responsible for reviewing and paying invoices follow internal control procedures contained in the new guidance to ensure proper payment, and that their actions are appropriately overseen and reviewed by management, ICE ERO could have better assurance that its detention management practices are in compliance with relevant laws to safeguard federal resources for detention services.

ICE Data Indicate Generally Higher Costs per Detainee per Day at ICE-Owned Facilities

Despite the limitations we identified with ICE’s data on facility costs, we determined—by interviewing officials and checking data for errors—that data maintained by the ICE ERO Operations Support Division in its Contract Financial Monitoring File were sufficiently reliable to provide a general indication of approximate cost ranges across and within facility types for fiscal year 2013. Our analysis of these data indicated that ICE generally spent more per detainee per day at ICE-owned SPCs than at other types of detention facilities. Specifically, our analysis indicated that while the median expenditure per detainee per day at SPCs was about $200, these costs were lower at about $120 for CDFs and about $75 for IGSAs and facilities operated under USMS intergovernmental agreement (IGA) or contract. Our analysis of these data also indicated that the range of costs within a facility type was greatest for SPCs than for other types of facilities. Specifically, our analysis showed that the range between the lowest- and highest-cost SPC facilities was about $195, while the range was lower for IGSAs and IGAs (about $110), CDFs (about $80), and DIGSAs (about $50).

ICE officials cited labor costs—which compose approximately 70 percent of all facility costs—as one of the common reasons for the differences in the ranges of costs across types of detention facilities. ICE officials stated that the agency has limited ability to negotiate labor rates in its detention and ground transportation contracts because they are subject to the Service Contract Act (SCA) of 1965, which, among other things, specifies prevailing wages by geographic area. ICE officials stated that as a result of the SCA’s requirements, facilities that are located in more expensive areas tend to have higher labor costs.

Factors that influence the amount of labor needed also affect overall costs at a particular facility, according to ICE officials. For example, a facility’s design and physical layout affect the number of staff needed to monitor the facility, and therefore affect older facilities, which usually have more blind corners and require more staff, according to officials. Other cost drivers include characteristics of the detainee population held at the facility, such as a large population with specialized medical needs that increase staff costs; the distance between the facility and other locations, such as immigration courts, which affects transportation costs; and the extent to which there are other nearby facilities that can house immigration detainees, which can lower costs because of competition, according to ICE officials.

ICE has taken steps to more specifically identify the reasons for cost differences across facility types, including hiring a contractor to identify actions the agency could take to more efficiently manage the procurement options for dedicated facilities.

Other issues at CDFs contributing to higher costs were a need to consolidate detention bed capacity among facilities within common operating areas and the lack of competition that drives up prices. business over a longer time period.a DIGSA had a profit margin of 20 percent.

For example, one contractor for

Government- and privately owned IGSAs. According to officials, the study did not specifically examine costs at individual IGSAs, but noted that facility costs at IGSAs may increase in the future when implementing the 2011 PBNDS—ICE’s most recently implemented detention standards. The study did not estimate such costs but presumed that according to interviews with ICE officials and contractors, implementing the 2011 PBNDS at IGSAs would not be cost neutral and would require significant contracting action.

ICE Applied Different Federal Standards across Facilities but Has Not Documented Reasons for the Differences

ICE Applies the Most Rigorous Detention Standards to 15 Percent of Facilities Housing Over Half of Detainees

ICE detention standards vary in rigor as defined by the number and content of standards in place to protect detainees and focus on performance outcomes. Since 2000, ICE has primarily used three sets of detention standards—the 2000 NDS, the 2008 PBNDS, and the 2011 PBNDS. In regard to the number of standards, the 2000 NDS contains 38 standards related to aspects of detainee care and services and facility operation, while the 2008 PBNDS contains 41 standards and the 2011 PBNDS contains 42 standards. These standards are discussed in further detail in appendix II. ICE has added standards over time to address issues of heightened concern or to address gaps in procedures. For example, ICE added a standard in the 2008 PBNDS to address sexual abuse and assault, and a standard in the 2011 PBNDS to address medical care for women. According to ICE ODPP officials, the agency made enhancements or revisions to 39 of the 42 standards in the 2011 PBNDS, such as in the areas of medical and mental health care. In regard to the content of standards, ICE noted certain additional requirements that were applicable to a different extent across facility types. For example, under the NDS and 2008 PBNDS, ICE requires ICE- owned SPCs and privately owned CDFs to conform to these additional requirements, while ICE states that government- or privately owned DIGSAs and IGSAs may adopt, adapt, or develop alternatives to the procedures provided they meet or exceed the intent represented by the additional requirements. Appendix III provides more detailed information on the additional requirements that SPCs and CDFs are required to follow. ICE officials said that under the 2011 PBNDS, some of these more substantive requirements became applicable to all facilities and ICE also introduced a new concept of optimal provisions that agency officials characterize as more stringent than the mandatory provisions, and therefore contractors may choose to adopt the optimal provisions voluntarily. While these optimal provisions are voluntary, ICE states that facility implementation of these provisions would further effective facility operation at the level intended by ICE under the revised standards. Appendix IV provides additional information on optimal provisions and an example. Finally, in regard to the focus of the standards, ICE officials explained that the 2008 PBNDS and 2011 PBNDS shifted language from expressing what is to be done under the required policies and procedures to focus on the results or outcomes the required procedures are expected to accomplish; they also provide a higher level of procedural detail than the 2000 NDS. ICE officials stated that the expected outcomes each standard is intended to produce are stated, rather than assumed, and the prescribed expected practices represent what is to be done to accomplish those expected outcomes. For example, while both the NDS and PBNDS include policies and procedures related to medical care, the 2000 NDS states that facilities “must have a procedure in place” to ensure that medical staff are alerted to health care requests in a timely manner, while the 2008 PBNDS states that health care needs “will be met in a timely and efficient manner,” and that each facility shall have a procedure to ensure that sick call requests are “received and triaged by appropriate medical personnel within 48 hours.”

According to ICE officials, ICE is to specify in each facility’s contract or agreement the standards to which the facility is to be held. Our analysis of ICE documents, however, showed that in fiscal year 2013, ERO held 3 (2.5 percent) of the 118 facilities that had the 2000 NDS or nonfederal standards cited in the contract or agreement to the more rigorous 2008 PBNDS during the inspection process. For facilities operating under a contract that cites the NDS, ERO officials stated that field officials responsible for overseeing the facilities, or the administrators operating the facilities, may decide to inspect them to the 2008 PBNDS if the officials judge that the facilities are able to meet the more rigorous requirements, and the facilities agree to this practice, or if the facilities themselves ask to be held to more rigorous standards. An ICE official responsible for detention policy explained that ERO inspecting a facility to more rigorous standards than those cited in the facility’s contract or agreement can be beneficial to ICE and detainees because it permits the agency to hold facilities accountable for more rigorous requirements. According to this official, it can be more efficient and cost-effective for ICE to ensure that facilities adhere to more rigorous standards through the inspection process rather than modifying the facilities’ contracts or agreements to include the more rigorous standards because, for example, facility contractors may request to open negotiations for the entire contract, which could be a time-consuming process, as well as request additional funding from ICE for the change in contract terms. For example, inspecting a facility to the 2008 PBNDS when the facility contract cites the 2000 NDS standards allows ERO to hold the facility accountable to standards for sexual abuse and assault prevention and intervention that would not be required of the facility if it was inspected under the 2000 NDS, which do not include those provisions.

ICE officials reported that as of January 2014, 20 of the 22 facilities that exclusively house ICE detainees—SPCs, CDFs, and DIGSAs—as well as 5 IGSAs, were held to the most recent and rigorous 2011 PBNDS. In fiscal year 2013, ICE housed approximately 54 percent of its ADP in these 25 facilities. Fourteen of the remaining 141 IGSA facilities—or approximately 16 percent of ADP—are held to the 2008 PBNDS, while the remaining 125 IGSA facilities—or 28 percent of ADP—that house ICE detainees along with other populations are held to 2000 NDS (see fig.3).

Furthermore, ODPP officials stated that a number of facilities, regardless of whether they have been updated to the 2011 PBNDS, have voluntarily adopted the Sexual Abuse and Assault Prevention and Intervention standard of the 2011 PBNDS, which requires, among other things, that written sexual abuse and assault prevention and intervention policies and procedures include components beyond those of the 2008 PBNDS, such as a statement of a zero tolerance policy for all forms of sexual abuse or assault.

As of April 2014, ICE officials said that they were in the process of requesting that additional facilities authorized to hold detainees for 72 hours or longer implement the most recent 2011 PBNDS, and documenting that change in facility contracts. Specifically, ICE officials stated that they planned to request that all such facilities with an ADP of 150 detainees or greater adopt the 2011 PBNDS by the end of fiscal year 2014. If implemented, this would increase the number of facilities held to the 2011 PBNDS from 25 to 61 facilities, or from 54 percent to 89 percent of the ADP. According to ICE officials, implementing the 2011 PBNDS has taken longer than anticipated. In April 2012, ICE disseminated an implementation plan to dedicated facilities requesting that they adopt the 2011 PBNDS over a staggered 6-month period. According to ODPP officials, ICE reached out to dedicated facilities first because they house the greatest population of detainees and because any increased costs would be spread across the entire population of the facility. ODPP officials said that ICE did not meet the plan’s original milestones because most facility contractors submitted extensive questions about the new standards and then requested that ICE modify their contract or agreement to include higher per diem rates to cover estimated costs of complying with the higher standards. ICE’s attempts to minimize the potential increased costs associated with adopting the newer standards required lengthy negotiations with facilities to arrive at cost-neutral contracts. In the case of nondedicated facilities that house fewer ICE detainees, ICE officials said it may not be cost-effective for the agency to negotiate with the facility contractors to increase standards for relatively few detainees who are held in detention or are held for short periods of time. For example, in fiscal year 2013, 46 facilities housed fewer than 10 detainees during the year, and the time these detainees spent in detention averaged less than 14 days. In addition, some facilities may be limited in their ability to comply with higher standards because of reasons such as space limitations. For example, the 2011 PBNDS require that detainees in administrative segregation receive at least 1 hour of daily exercise opportunities outside of the living area, but according to ICE officials, some facilities that house ICE detainees may not have space to expand the opportunities for outdoor recreation.

ICE Did Not Have Documentation for Reasons Why Standards Vary across Facilities

ICE has not documented the reasons for using different standards across facilities or why the 125 facilities under 2000 NDS as of January 2014 had not been transitioned to the 2011 PBNDS. ICE officials said that reasons different standards were used across facilities include cost issues as well as facilities’ ability to comply with recent standards. These officials also stated that agency implementation plans for progressively adopting the 2008 and 2011 PBNDS across certain facilities served to document the agency’s rationale for using different standards across facilities. However, while these plans documented which facilities were to receive requests to adopt the newer standards, they do not document the reasons why these facilities were chosen or why remaining facilities cannot be transitioned to the most recent standards. For example, the implementation plan for the 2011 PBNDS did not explain why some smaller—in terms of facility type and ADP—facilities that were not listed in the plan were transferred to the 2011 PBNDS, while other, similar facilities not included in the plan were not transferred to the newer standards.

ICE officials said that in certain instances, detention facilities can have standards waived after a review and approval by ICE. Specifically, the agency may choose to waive certain detention requirements for a facility if the contractor can comply with all but a specific detention standard, such as the 2011 PBNDS standard for outdoor recreation, which describes detainees’ access to exercise and recreation activities within the appropriate security restraints. These officials said that waivers are granted infrequently and usually only after ICE has (1) reviewed the facility contractor’s request, (2) worked with the facility contractor to identify a work-around solution that would allow the facility to comply with the standard, and (3) confirmed that the facility has a “better than acceptable” process in place that meets the intent of the standard even if it does not meet the strict letter of the standard. According to ICE ERO, as of August 2014, waivers were in effect for 41 standard components— the line items that compose the standards—across 35 facilities; these waivers were approved from fiscal year 2012 through August 2014. Our analysis of these waivers showed that 22 (54 percent) of the waivers are related to a component of the environmental health and safety standard, which requires facilities to, among other things, maintain a dedicated barbering space and test power generators every 2 weeks. For example, one facility lacks a separate barbering facility and has collocated barbering services in a multipurpose room that is also used for dental appointments. Another 6 (15 percent) of the 41 waivers relate to a component of the key and lock standard, which requires facilities to ensure that an on-site security officer completes locksmith training. In these instances, facilities have agreed to use a contractor to install and repair locks because they say training a security officer to perform that function would be too expensive. The remaining 13 waivers address a variety of other standards. According to ERO officials, copies of approved waivers are provided to the facility contractor and to the ICE ERO field office that oversees the facility; copies are also to be provided to ODO officials upon request.

Standards for Internal Control in the Federal Government specifies that all transactions and other significant events should be clearly documented and the documentation should be readily available for review. According to ICE officials, implementation of the 2011 PBNDS at facilities with an ADP of fewer than 150 is to be conducted on a case-by-case basis. However, ICE ERO was not able to provide documentation of the reasons it decided to implement the 2008 or 2011 PBNDS at some of these facilities while keeping other facilities at the older, less rigorous 2000 NDS or 2008 PBNDS. A senior ICE official stated that ICE relies on institutional knowledge within the agency to track reasons for assigning certain standards to individual facilities. For example, our analysis identified 1 facility that reverted to 2008 PBNDS after attempting to adopt the higher 2011 PBNDS; ICE officials stated that the rationale for this decision had not been documented. Documenting reasons why facilities cannot be transitioned to the most recent standards could help strengthen ICE’s ability to oversee facilities’ compliance with detention standards and could provide an institutional record of decisions ICE has made about why facilities are held or not held to certain standards.

ICE Uses More Oversight Mechanisms at Facilities with Greater Detainee Populations, with Some Inconsistencies in Results across Key Mechanisms

Amount of ICE Oversight Is Driven by Detainee Population and Resources

ICE uses four mechanisms for assessing facilities’ compliance with detention standards: (1) annual or biennial inspections conducted by an ERO contractor, (2) annual self-inspections conducted by facility staff under ERO’s Operational Review Self-Assessment (ORSA) process, (3) periodic compliance inspections of selected facilities by ODO personnel, and (4) on-site monitoring provided by an ERO detention service manager (DSM). ICE officials responsible for detention oversight stated that these different oversight mechanisms complement one another and serve different purposes. ERO inspections are to assess compliance with all applicable detention standards at each facility. Likewise, self- inspections, which apply to more than half of the smallest IGSAs and IGAs—generally those with an ADP of fewer than 10 detainees—cover key components of the detention standards. ODO is to conduct in-depth compliance inspections that focus on certain standards and facilities selected through a risk-based approach. DSMs are to monitor facility adherence to ICE’s detention standards on a day-to-day basis and provide facilities with technical guidance, including guidance advising how to implement corrective action plans, as needed.

Five medium IGSA and USMS IGA facilities (1 percent)—ranging in average daily population from 69 to 137—had on-site monitors during fiscal year 2013 and are excluded from this analysis. monitoring, and none received an ODO compliance inspection. ICE typically applied fewer types of oversight mechanisms at facilities with small detainee populations—generally less than 10 ADP—where more than half received oversight in the form of a self-inspection and about a third were inspected by ERO. These small facilities were not subject to ODO compliance inspections and did not have DSMs. Eighteen facilities that housed about 1 percent of total ADP in fiscal year 2013 were not subject to any of the four types of oversight mechanisms. ICE officials attributed this to various reasons, such as ICE not holding detainees in the facility during the year, ICE deciding to no longer use the facility, and the fact that some facilities met the criteria for biennial review and therefore they were not inspected in fiscal year 2013 (their next scheduled inspection was in fiscal year 2014).

ICE ERO officials stated that the agency determines which ERO oversight mechanisms are to be used at facilities primarily based on the size of the facility—total detainee population—and available resources, among other factors. For example, facilities that have an ADP of between 10 and 50 are inspected by a contractor on an annual basis, or a biennial basis if their past two inspections were satisfactory. Because of time and resource concerns, facilities that have an ADP of fewer than 10 may not be inspected by ERO, but are required to perform self-inspections on an annual basis and report the results of the inspections to ERO. According to ERO officials, DSMs are to monitor facility conditions on a day-to-day basis. However, ERO officials also stated that ERO generally reserves on-site monitoring for facilities with large populations of 100 or more detainees and that resource constraints currently limit further expansion of the program. According to ODO officials, resource constraints also limit the number of facilities ODO can inspect on an annual basis.

Our analysis of the number of detainees confined in facilities where ICE used varying oversight mechanisms showed that in fiscal year 2013, nearly all ICE detainees were housed in facilities that were subject to at least one form of oversight. Further, in fiscal year 2013, the majority of detainees—94 percent of ICE’s average daily population—were in facilities that received an annual ERO inspection—and continuous on-site monitoring by a DSM—78 percent of ICE’s average daily population—as shown in figure 5. About 40 percent of ICE’s average daily population of detainees were held in facilities that received an in-depth ODO compliance inspection in fiscal year 2013. A small minority of detainees— about 1 percent of ICE’s average daily population—was housed in facilities that conducted a self-inspection. Additionally, less than 1 percent of the average daily population was not subject to any of these oversight mechanisms during fiscal year 2013.

ICE Has Not Assessed Reasons for Inconsistencies in Facility Inspection Results

ERO and ODO conducted inspections at many of the same facilities, but collectively their inspections showed different results in fiscal year 2013. Specifically, our analysis of ICE inspection results showed that ERO and ODO included 35 of the same facilities in their inspections conducted during fiscal year 2013, and in 29 of these inspections, ODO found more deficiencies than ERO across facility types (see table 3). Collectively, for those 35 facilities, ODO identified 448 deficiencies and ERO identified 343 deficiencies. For these facilities inspected under the 2000 NDS and the 2008 and 2011 PBNDS, these deficiencies represented failure to comply with one or more components that constitute a detention standard, but not failure to comply with the overall standard.

For the 35 facilities at which both ICE ERO and ODO conducted an inspection in fiscal year 2013, in some cases ERO and ODO found different facility deficiencies within the same standards. This included three standards that ICE has determined are some of the highest-priority standards, because they have a high potential for adverse effects: For Medical Care, Special Management Units, and Use of Force.example:

Medical Care. ICE ERO and ODO inspection reports differed in the extent to which they found deficiencies in medical care for the same facilities, including facility inspection reports in which only ERO found deficiencies, facility reports in which only ODO found deficiencies, and reports in which both ERO and ODO found deficiencies but the specific deficiencies differed. For example, at one IGSA, ODO found that the facility was not properly safeguarding detainee medical information, as all facility staff had access to each detainee’s medical intake form. At this same facility, ICE ERO did not find any deficiencies related to medical care.

Special Management Units. ERO and ODO inspection reports differed in the extent to which they identified deficiencies pertaining to special management unit standards. For example, at one facility, ERO found the facility deficient in most elements of the special management unit standard, as the facility did not have a special management unit. ODO noted that the facility did not operate a special management unit and therefore did not report the absence as a deficiency. At another facility, ODO reported that the facility’s policies and procedures did not require the facility administrator to consult with ERO’s Detention Management Division prior to approving the placement of an individual in a special management unit cell, which would provide ERO an opportunity to consult with DHS or ICE legal counsel as required by the standard. At that same facility, an ERO inspection found that the facility met all components of the special management unit standard.

Use of Force. ODO and ERO inspections both found deficiencies related to the use of force standard. For example, at one facility, ODO found two deficiencies in the standard: (1) the facility had no procedures established for after-action reviews of use of force incidents, and (2) facility policy did not require calculated use of force incidents to be video-recorded, as required by the standards. At this same facility, ERO found one use of force deficiency—staff were not trained in use of force team techniques, as required.

ICE officials told us they have not assessed the extent to which ODO compliance inspection results showed a greater number of deficiencies at facilities in fiscal year 2013, or the extent to which ERO contract inspections have the capacity to fully capture deficiencies in facilities’ compliance with relevant detention standards. However, ICE officials cited several reasons as to why ERO and ODO inspection results may differ across facilities:

Timing of inspections. According to ICE officials, between inspections, facilities may resolve previously identified deficiencies or may incur new ones. In fiscal year 2013, ERO and ODO inspections at the 35 facilities ranged from less than 1 to 10 months apart.

Coverage and depth of inspections. According to an ICE official, ODO’s in-depth compliance inspections are more likely to identify a greater number of deficiencies. For example, in reviewing the medical care standard, ERO inspectors may select 10 files to review to determine if a facility is following policies and procedures. ODO may check 50 files to assess overall compliance and may look beyond the standards and inspection checklist requirements addressed by ERO to address any quality of care concerns that have been raised.

Reporting of results. According to ICE officials, differences in ERO and ODO reporting styles can make it difficult to assess the extent to which inspection results differ. ERO’s contracted inspector uses a checklist to identify deficiencies in the components that compose the standards, and determine whether the number of deficient components rises to the level of a deficiency in standards. ODO does not use a checklist and reports its findings in a narrative descriptive report and identifies deficiencies in components but does not assess whether these deficiencies meet the threshold of a deficient standard. For example, if the ICE ERO inspection sheet does not include a component directly related to a particular part of the standard, ODO may cite a deficiency that ERO may not find or identify.

Given the different purposes of ODO and ERO inspections, it is reasonable to expect in some cases the respective findings differ, according to differences in the depth and scope of the inspections. However, without assessing why these differences occur, ICE is not well positioned to determine the extent to which the oversight mechanisms are functioning as intended. Moreover, Standards for Internal Control in the Federal Government calls for operational information to be recorded and communicated to management and others within the entity so that the entity can determine whether compliance requirements are being met. In addition, management is to ensure there is adequate and effective communication between internal and external stakeholders to help ensure appropriate decisions are made based on reliable and relevant information.

ICE officials stated that ERO and ODO have not discussed differences in their inspection findings and have not addressed broader issues of why ERO and ODO inspection results differed across almost all inspections conducted at the same facilities within fiscal year 2013, or to what extent oversight mechanisms are functioning as intended. Assessing the underlying reasons why ERO and ODO inspection results may differ, and the extent to which these differences may reflect broader issues, could help ICE ensure that inspection mechanisms are working as intended and the extent to which any changes may be needed to ensure safe, secure, and humane confinement.

Conclusions

As the number of aliens in detention facilities has dramatically increased over the past decade, so too have the associated costs of maintaining and operating what is now the nation’s largest civil detention system. ICE has recently taken steps to assess the primary drivers of facility costs by types of facilities while continuing to improve confinement standards and maintain a robust oversight program. However, ICE faces challenges in the extent to which it can use its financial management system—including manual work-arounds—to reliably identify and compare facility costs, a fundamental aspect of effectively estimating and controlling the cost of operations. Assessing and developing additional internal controls over the management of facility cost data could help ensure that the mechanisms ICE has in place, or is developing, to identify facility costs are accurate and reliable, and provide ICE with more reliable data to effectively manage detention costs. Similarly, while we recognize that ICE faces competing priorities in determining detainee placement, developing an oversight mechanism to ensure that field offices comply with guidance to appropriately consider costs in making detainee placement decisions could help ensure that the agency is effectively managing the costs of housing detainees. Moreover, although ICE has taken steps to reduce the improper payment rate for facility contractors, taking additional steps to ensure that responsible personnel follow internal control procedures to ensure contractor payments are accurate and properly supported could provide additional assurance that ICE’s detention management practices comply with relevant laws and are effectively protecting federal resources.

As it seeks to more efficiently manage facility costs, ICE is also in the process of applying more rigorous detention standards to generally larger detention facilities. Documenting the reasons why remaining facilities are not held to the new standards could provide the agency with an institutional record and enhance the transparency and accountability of the agency’s process for managing detention facilities.

Finally, identifying the underlying reasons why inspections conducted by ERO and ODO for the same facilities may result in different findings could help ICE better ensure that oversight mechanisms are working as intended and inspection results are accurately reflecting facilities’ compliance with relevant standards.

Recommendations for Executive Action

To enhance ICE’s ability to analyze and manage detention facility costs, ensure transparency and accountability in the management of detention facilities, and strengthen the oversight mechanisms that ensure detention facilities provide safe, secure, and humane confinement, we recommend that the Director of U.S. Immigration and Customs Enforcement take the following five actions: assess the extent to which ICE has appropriate internal controls for tracking and managing detention facility costs and develop additional controls as necessary; develop an oversight mechanism to ensure that field offices comply with guidance to appropriately consider costs in making detainee placement decisions; take additional steps to help ensure that personnel responsible for reviewing and paying facility detention invoices follow internal control procedures to ensure proper payments; document the reasons facilities cannot be transitioned to the most review reasons for differences between ERO and ODO inspection results and assess the extent to which differences reflect broader issues with the inspection mechanisms themselves to help ensure the mechanisms are working as intended.

Agency Comments and Our Evaluation

We provided a draft of this report to DHS and DOJ for their review and comment. In an e-mail from DOJ’s Audit Liaison on September 10, 2014, DOJ indicated that it did not have any comments on the draft report. DHS provided written comments, which are summarized below and reproduced in full in appendix V, and technical comments, which we incorporated as appropriate. DHS concurred with four of the five recommendations in the report and described actions underway or planned to address them. DHS did not concur with one recommendation in the report.

With regard to the first recommendation, that ICE assess the extent to which ICE has appropriate internal controls for tracking and managing detention facilities costs and develop additional controls as necessary, DHS concurred and stated that the ICE Office of the Chief Financial Officer developed enhanced financial coding to identify expenditures by individual detention centers and began collecting data in fiscal year 2014. DHS stated that ICE will monitor expenditures to determine proper allocation, future funding requirements, and if additional internal controls are required. DHS provided an estimated completion date of September 30, 2015. These planned actions, if fully implemented, should address the intent of the recommendation.

With regard to the second recommendation, that ICE develop an oversight mechanism to ensure that field offices comply with guidance to appropriately consider costs in making detainee placement decisions, DHS concurred and stated that ICE ERO will develop such an oversight mechanism using the Self-Inspection Program. DHS provided an estimated completion date of September 30, 2015. To the extent that the Self-Inspection Program provides ICE with oversight of field office compliance with the guidance, these planned actions, if fully implemented, should address the intent of the recommendation.

With regard to the third recommendation, that ICE take additional steps to help ensure that personnel responsible for reviewing and paying facility detention invoices follow internal control procedures to ensure proper payments, DHS concurred. DHS stated that ICE had issued a new policy applicable to all program offices and will assess if additional internal controls are required and implement any needed ones, as appropriate. DHS estimated a completion date of April 30, 2015. To the extent that ICE assesses the status and need for internal controls necessary to ensure personnel compliance with the policies to ensure proper payments, these planned actions, if fully implemented, should address the intent of the recommendation.

With regard to the fourth recommendation, that ICE document the reasons facilities cannot be transitioned to the most recent standards, DHS did not concur. DHS stated that ICE believed it had already appropriately documented the rationale for the decisions made in the course of implementing PBNDS 2011 and that additional documentation is not necessary in this regard. DHS stated that it established and followed an implementation plan for transitioning facilities to PBNDS 2011 first focusing on dedicated facilities, to be followed by non-dedicated intergovernmental service agreement facilities with an average daily population of 150 or greater and that on an ongoing basis, has been making efforts to incorporate PBNDS 2011 into facility agreements as contracting opportunities arise. DHS stated that the implementation process was labor-intensive and time-consuming, and ICE made an assessment of which facilities represent priorities for transitioning to PBNDS 2011 given the limits on agency personnel and resources, and in recognition of the fact that not all 250 facilities could be transitioned at once, or quite possibly, compelled to transition at all. DHS stated that our findings and recommendation appeared to presume PBNDS 2011 as a starting point for all detention facilities, with ICE making decisions on a case-by-case basis whether to make an exception and deviate from that norm. DHS noted that as ICE does not have the authority to unilaterally impose new detention standards upon facilities, it can only request that a facility adopt the new standards with the facility retaining the right to refuse implementation or to request additional funds as a condition of compliance.

We continue to believe that ICE should document the reasons why individual facilities cannot be transitioned to the most recent standards. In our report, we noted that ICE makes requests to facilities to adopt new standards and that facilities’ adoption of new standards may involve contract negotiations between ICE and the facilities. For example, in our report, we noted that ICE has attempted to minimize the potential increased costs associated with adopting the newer standards and that these attempts have required lengthy negotiations with facilities to arrive at cost-neutral contracts. Further, as noted in our report, ICE’s implementation plan discusses priorities for transitioning facilities to the 2011 PBNDS. In its comments to our draft report, DHS discussed the reasons why some smaller (less than 150 ADP) nondedicated facilities have been transitioned to the 2011 PBNDS—these facilities were transitioned because their contracts had come up for renegotiation of the per diem rate—however, the 2011 PBNDS implementation plan did not document these reasons or why remaining facilities cannot be transitioned to the most recent standards. For example, the implementation plan for the 2011 PBNDS did not explain why some smaller facilities that were not listed in the plan were transferred to the 2011 PBNDS, while other, similar facilities not included in the plan were not transferred to the newer standards. Specifically, the plan did not discuss why the 125 individual facilities under 2000 NDS as of January 2014 were not transitioned to 2011 PBNDS. Documenting reasons why facilities cannot be transitioned to the most recent standards would help strengthen ICE oversight of facility detention standards and provide an institutional record of decisions ICE has made about why facilities are held or not held to certain standards. It would also provide more transparency and accountability to facility contractors and to the public regarding ICE management decisions that result in different standards of care for detainees across facilities.

With regard to the fifth recommendation, that ICE review reasons for differences between ERO and Office of Detention Oversight inspection results and assess the extent to which differences reflect broader issues with the inspection mechanisms to ensure the mechanisms are working as intended, DHS concurred. DHS estimated that ERO and ODO would complete such action by March 30, 2015, and stated that it was important to note that ODO must maintain independent oversight authority when conducting inspections, and that any proposed changes must be reviewed by senior ICE leadership prior to implementation, as appropriate. This planned action, if effectively implemented, should address the intent of the recommendation.

We are sending copies of this report to the appropriate congressional committees, the Secretary of Homeland Security, the Attorney General of the United States, and other interested parties. 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, please contact me at (202) 512- 8777 or gamblerr@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. GAO staff who made significant contributions to this report are listed in appendix VI.

Appendix I: Objectives, Scope, and Methodology

This report addresses the following three objectives: 1. How do federal costs compare across different types of immigration detention facilities, and to what extent does Immigration and Customs Enforcement (ICE) have processes to track and manage these costs? 2. To what extent do the federal standards that govern conditions of confinement vary across different types of immigration detention facilities, and what are the reasons for any differences. 3. To what extent do federal oversight and the results of that oversight vary across different types of immigration facilities?

In this report, we assessed the costs to the federal government of housing ICE detainees at different types of facilities, the federal standards that govern confinement conditions at those facilities, and ICE oversight mechanisms for ensuring compliance with these standards. The Department of Homeland Security (DHS) defines an immigration detention facility as a confinement facility operated by or affiliated with ICE that routinely holds persons for over 24 hours. However, of the 251 facilities authorized by ICE to hold detainees as of August 2013, we limited our analysis to the 166 facilities that were designated to hold detainees for 72 hours or longer because of the frequent turnover in the detainee population at short-term facilities—such as holding facilities— which temporarily house detainees waiting for ICE transfer. These 166 facilities also exclude three federal prisons where ICE had detention bed space in fiscal year 2013; two of the prisons housed a few detainees and the third prison was discontinued for immigration detainees as of the end of calendar year 2013, according to Bureau of Prisons and ICE officials. We also excluded facilities for juvenile detainees—individuals under 18 years of age—because these facilities are regulated by the Department of Health and Human Services.

To determine how federal costs compare across different types of immigration detention facilities, we analyzed ICE fiscal year 2013 data, the most recent fiscal year for which data were available, related to ICE expenditures for detention facilities. These data include the Contract Financial Monitoring File (CFMF), a manual tool maintained by ICE Office of Enforcement and Removal Operations’ (ERO) Operational Support Division to budget and track costs at individual facilities, and ICE Office of Budget and Program Performance (OBPP) fiscal year 2013 data drawn from ICE’s Federal Financial Management System (FFMS). ICE OBPP uses these data to calculate ICE’s average facility “bed rate”—the average cost to house one detainee for 1 day. To determine the reliability of the CFMF, we conducted data testing to look for anomalies, reviewed related documentation, and interviewed knowledgeable agency officials. We determined that these data were sufficiently reliable for our purposes, but have limitations as discussed in this report. To assess the reliability of ICE OBPP’s bed rate data, we tested the data and interviewed knowledgeable agency officials. We determined that the data are not reliable for reporting on the differences in cost by facility type, as discussed in this report. To determine the reasons for possible differences in costs, we analyzed ICE documents, including an ICE- funded study of detention bed rate costs across facilities and in particular at ICE-owned service processing centers (SPC), and interviewed agency officials. We assessed the methodology for the ICE-funded study and determined that it was reliable for our purposes. To determine the extent to which ICE has processes in place to track and manage detention facility costs, we analyzed relevant documents, including DHS annual financial reports, previous GAO reports related to DHS financial management, and ICE financial management guidance, and interviewed agency officials. We assessed our findings related to ICE’s financial management practices against Standards for Internal Control in the Federal Government and ICE’s 2010-2014 strategic plan. We also analyzed the extent to which ICE’s average daily population (ADP) in its facilities met the guaranteed minimums—the number of beds ICE pays for each day regardless of their utilization—in those facilities. We assessed ICE’s plans to develop guidance for the field related to considering cost in detainee placements against Standards for Internal Control in the Federal Government. We reviewed relevant laws, including the Improper Payments Information Act (IPIA) of 2002, the Improper Payments Elimination and Recovery Act (IPERA) of 2010, and the Improper Payments Elimination and Recovery Improvement Act (IPERIA) of 2012, as well as related Office of Management and Budget guidance. We analyzed a sample of invoices and supporting documentation submitted to ICE by detention services contractors for services provided in December 2013 to determine the extent to which these invoices met ICE’s requirements for invoice elements and supporting documentation, and were managed in accordance with Standards for Internal Control in the Federal Government. We selected invoices from December 2013 because, according to ICE officials, invoices from December 2013 and later should adhere to ICE’s new invoice submission and review guidance. We analyzed 31 of the 158 invoices for detention services in December 2013 that ICE had received by February 2014. The selection included invoices from a range of facility types. Results of our analysis are not generalizable beyond the sample, but they provide insight into facility invoice adherence to the new guidance. To determine the extent to which ICE has processes to track and manage detention facility costs and plans for developing guidance related to detainee placements, we also interviewed cognizant agency officials.

To assess the extent to which the federal standards that govern conditions of confinement vary across different types of immigration detention facilities and reasons for any differences, we identified ICE detention standards, including the 2000 National Detention Standards (NDS), the 2008 Performance-Based National Detention Standards (PBNDS), and the 2011 PBNDS and analyzed the extent to which ICE applied these different standards across detention facilities. We analyzed these three sets of standards to assess the similarities and differences among the standards in terms of the number, content, and application across facilities. To identify the standards to which each facility was held, we first analyzed the standards included in 166 facility contracts and agreements in place as of August 2013, the date that ICE had provided us a list of facilities that are authorized to house detainees for over 72 hours when we began our analysis. Because ERO officials told us that facilities can be inspected to higher standards than those specified in the signed contract or agreement, we next analyzed ERO inspection data to identify the standards to which facilities were inspected in fiscal year 2013, or the most recent year inspected. If a facility was inspected to a more rigorous set of standards than those identified in its contract or ERO’s facilities list, we categorized the facility by the standards to which it was inspected. Finally, we updated our analysis to incorporate facility standards updated by ERO in facility contracts or agreements as of January 2014, to capture all updates made during 2013. To determine the percentage of ICE detainees who were covered by each set of standards during fiscal year 2013, we analyzed the standards to which each facility was held against the ADP. In addition, we assessed the extent to which ICE documented its decision-making process for determining which standards to apply at which facilities in accordance with Standards for Further, we analyzed 41 Internal Control in the Federal Government.waivers ICE had granted to detention facilities to exempt them from certain detention standards, and which were still in effect in August 2014, when we performed the analysis. These waivers were approved from fiscal year 2012 through August 2014. We assessed these waivers to identify the specific standards for which ICE has issued waivers. We also interviewed ICE officials to determine the reasons why standards vary by facility type and ERO’s plans to implement the most recent set of detention standards at facilities.

To assess how federal oversight compares across different types of immigration detention facilities, we identified the various oversight mechanisms ICE used at detention facilities in fiscal year 2013 and analyzed differences in their use and results. Specifically, we analyzed the extent to which ICE used (1) annual and biennial facility inspections conducted by the ERO contractor, (2) annual facility self-inspections conducted under ERO’s Operational Review Self-Assessment (ORSA) process, (3) ERO’s detention service manager (DSM) on-site monitoring program, and (4) Office of Detention Oversight (ODO) risk-based facility inspections at 166 ICE facilities authorized to hold detainees for over 72 hours as of August 2013. With respect to ERO’s inspection program, we analyzed ERO inspection data for fiscal year 2013, the most recent fiscal year for which inspection data were available. To determine the reliability of ERO’s inspection data, which are maintained in ERO’s Facility Performance Management System (FPMS), we conducted data testing to identify anomalies and interviewed knowledgeable agency officials. We concluded that the FPMS data were sufficiently reliable for the purposes of this report. We interviewed cognizant agency officials regarding these mechanisms and the reasons why different oversight mechanisms were used at different facilities. We compared the percentage of fiscal year 2013 ADP in immigration detention facilities by facility type and oversight mechanisms used at facilities to determine what percentage of detainees are housed in facilities at which ICE uses the various oversight mechanisms. To determine the extent to which the results of oversight mechanisms vary, we compared the results of ICE ERO’s annual inspections and ICE ODO inspection results for the 35 facilities that received both an ERO and ODO inspection in fiscal year 2013. Specifically, we compared ERO and ODO inspection results across the 35 facilities to determine differences in the overall number of deficiencies identified by each office. We also compared ERO and ODO facility inspection results for selected facilities across three standards that ICE has identified as high priority—medical care, special management unit, and use of force—to illustrate differences between ERO and ODO inspections of the same facilities. We also interviewed ICE ERO and ODO agency officials regarding the reasons for any differences in results between the two oversight mechanisms. We assessed the extent to which ICE addressed the differences in the results of the two oversight mechanisms and communicated these differences to management and others within the agency in accordance with Standards for Internal Control in the Federal Government.

We conducted this performance audit from March 2013 to October 2014, in accordance with generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.

Appendix II: Comparison of U.S. Immigration and Customs Enforcement (ICE) Detention Standards

U.S. Immigration and Customs Enforcement primarily uses three sets of national detention standards with varying requirements to govern the conditions of confinement in its detention facilities—the 2000 National Detention Standards (NDS), the 2008 Performance-Based National The 2000 NDS Detention Standards (PBNDS), and the 2011 PBNDS.contains 38 standards related to aspects of detainee care and services and facility operation, while the 2008 PBNDS contains 41 standards, and the 2011 PBNDS contains 42 standards, as shown in table 4.

Appendix III: Example of an Italicized Requirement

In addition to the procedures that all detention facilities are expected to meet, U.S. Immigration and Customs Enforcement (ICE) detention standards can require specific types of facilities to conform to more detailed procedures; however, all sets of standards identify these detailed procedures in italicized text (referred to as “italicized requirements”). ICE’s 2000 National Detention Standards (NDS) and the 2008 Performance-Based National Detention Standards (PBNDS) require service processing centers (SPC) and contract detention facilities (CDF) to conform to the more detailed procedures; facilities operating under a nondedicated intergovernmental service agreement (IGSA), however, may either conform to the italicized procedures or adopt, adapt, or establish alternative procedures. The 2011 PBNDS require all dedicated facilities—SPCs, CDFs, and those dedicated facilities operating under an intergovernmental service agreement (DIGSA)—to conform to the more detailed procedures; nondedicated IGSAs may choose to conform to or adopt alternative procedures. According to ICE, the italicized procedures are intended to make conditions of confinement more uniform at facilities where only ICE detainees are housed. Table 5 presents an example of an italicized procedure from the 2011 PBNDS. For a complete list of 2011 PBNDS italicized procedures, go to http://www.ice.gov/detention-standards/2011/.

Appendix IV: Example of an Optimal Provision in U.S. Immigration and Customs Enforcement’s (ICE) 2011 Performance- Based Detention Standards (PBNDS)

Appendix IV: Example of an Optimal Provision in U.S. Immigration and Customs Enforcement’s (ICE) 2011 Performance-Based Detention Standards (PBNDS)

In the 2011 PBNDS, ICE introduced the concept of optimal provisions— nonmandatory provisions that facilities may choose to implement, but are not required. According to ICE, implementation of these provisions furthers the effective operation of a facility at the level intended under the revised 2011 PBNDS. ICE reports that these optimal provisions allow for a range of compliance across its diverse facilities, which facilitates the immediate implementation of the revised standards—at minimal cost— while ICE continues to lay the groundwork for future reform of the detention system. Table 6 provides an example of an optimal provision in the 2011 PBNDS. For a complete listing of all optimal provisions in the 2011 PBNDS, go to http://www.ice.gov/detention-standards/2011/.

Appendix V: Comments from the Department of Homeland Security

Appendix VI: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

In addition to the contact named above, Lacinda Ayers (Assistant Director), Pedro A. Almoguera, Carla D. Brown, Frances A. Cook, Michele Fejfar, Allyson R. Goldstein, Barbara A. Guffy, Melissa Hargy, Paul D. Kinney, Amanda K. Miller, Jessica S. Orr, James J. Ungvarsky, John Warner, and Eric M. Warren made significant contributions to this report.