The USMS response to the audit (Appendix XII) describes the actions taken or planned to implement our recommendations.  Our analysis of the USMS’s response to specific recommendations is provided below.  In addition to responding to the recommendations, the USMS made a number of claims in the program overview section of its response to which we first respond.

We recognize the challenges that the USMS faces in confronting the increases in prisoner population and its effect on day-to-day operations.  However, these challenges do not absolve the USMS of its responsibilities to provide adequate prisoner medical care, especially with regard to areas concerning public safety.  Further, we question the validity of the arguments put forth by the USMS to explain its lack of compliance with federal regulations, as well as its own policies and procedures.

Among the mitigating factors cited, the USMS stated “field staff have had to become increasingly dependent on guards to perform vital local transport functions.”  We agree the use of guard services for prisoner handling can be problematic if not managed properly, and indeed it was one of the problems cited in our report.  But the use of contract guards should not in and of itself have any bearing on whether the USMS meets its commitments with regard to prisoner medical care.

In addition, the USMS stated that district personnel have no medical expertise and that operations suffer from the lack of a centralized national prisoner database.  However, we noted that a number of districts we reviewed had deputies on staff who are trained and certified as Emergency Medical Technicians (EMT).  Also, while we agree the USMS needs a centralized national prisoner database, the problems we encountered in the tracking and monitoring of TB, for example, would not have been affected by the existence of such a database because the districts were not maintaining the required data either manually or electronically.

The OIG report does not minimize the strides that the USMS has made with regard to cost savings in medical billings resulting from implementation of the claims processing contract with Healthnet and the development of the managed care network in the New York City area in cooperation with the Department of Veterans Affairs.  In fact, both of these initiatives are mentioned in our report.  However, while the USMS claims success in obtaining passage of Public Law 106-113, it has yet to become compliant with the legislation regarding the payment of medical services at the lesser of Medicare or Medicaid rates.  In addition, while we note the USMS’s efforts in developing prisoner health care policies and procedures, their successful implementation has been problematic, as indicated throughout this report.  For example, USMS guidance on documenting the incidence of TB in the districts was almost universally disregarded.  Further, the USMS had failed to implement its September 2002 draft policy on prisoner health and emergency care in a timely manner.  The policy was still in draft at the time this report was issued to the USMS for comment in November 2003.

In summary, the OIG recognizes the need to view program functions within the context of an agency’s overall mission.  In the case of the USMS, we understand the challenges associated with an increasing workload placed upon their workforce.  However, the information provided in the program overview section of the USMS response, while informative, does not mitigate or undermine our findings, nor does it justify delays in the implementation of corrective actions.

Recommendation Number:

1. Resolved.  In its response, the USMS stated that it would disseminate guidance to the field by February 27, 2004, regarding the authorization, recording, and tracking of outside medical procedures.  The OIG has no problem with the USMS using different sub-object codes for company guards and personal service contract guards, as long as the districts are consistent in their approach.  This was not the case in at least three districts, where payments for personal service contract guards were recorded under the sub-object used to track payments for guard company contract guards.  We also note that establishment of a national managed care contract should address the administrative problems encountered with regard to pre-authorization and FAR violations.  In the interim, however, the USMS needs to address all of the weaknesses identified in this report.  In order to close this recommendation, please provide to the OIG copies of all procedural guidance disseminated to the districts in response to this recommendation pertaining to the authorization, recording, and tracking of outside medical procedures by March 12, 2004.

2. Resolved.  The USMS stated that it would re-initiate operational reviews of USMS district offices and is currently reviewing a proposal to establish an Office of Inspections.  It has now been nearly four years since the USMS suspended “periodic” reviews of district operations.  The USMS should develop interim action to be taken in the event that its proposed Office of Inspections cannot be established within a reasonable timeframe.  In order to close this recommendation, please provide to the OIG by March 12, 2004, a definitive timeframe for the re-establishment of operational reviews.

3. Resolved.  In its response, the USMS stated that it anticipates awarding a national managed health care contract in fiscal year 2004.  In order to close this recommendation, please notify the OIG upon the successful conclusion of contract negotiations and provide to the OIG a copy of the signed contract.  With regard to USMS non-compliance with legislation requiring payment for medical services at the lower of Medicaid or Medicare rates, USMS management disputed the accuracy of the report’s “finding” that the agency expended an estimated $7 million more in medical funds than necessary, and suggested that the estimate is overstated or inflated.  To the contrary, we believe that the estimate is conservative based on the fact that the Medicaid rates in the states with the largest share of medical costs were less as a percentage of Medicare rates than the 81 percent overall average used in our analysis.  Medicaid rates in California and New York, for example, which accounted for over 30 percent of total outside medical costs, averaged 65 and 78 percent of Medicare rates respectively.  In all likelihood, the formal state-by-state analysis alluded to in the USMS’s response would have yielded an even greater estimate of potential cost savings.  While the OIG understands the concerns voiced by the USMS over enforcement of the current legislation, the USMS should achieve compliance with the law, particularly given the cost savings attainable, or obtain appropriate legislative relief.

4. Resolved.  The USMS stated that it would disseminate guidance to the field by February 27, 2004, regarding the use of prisoners’ private insurance to cover the costs of outside medical care.  It also stated that only a small number of prisoners have private insurance.  Yet, the instances noted in our report and by the USMS in its response indicate that the benefits of enforcing utilization of prisoners’ medical insurance outweigh the minimal administrative efforts required.  In order to close this recommendation, please provide to the OIG copies of all procedural guidance disseminated to the districts in response to this recommendation by March 12, 2004.

5. Resolved.  In order to close this recommendation, please provide to the OIG by March 12, 2004, copies of procedural guidance disseminated to the field regarding cellblock health care policy and CPR and AED training.

6. Unresolved.  Part (a) is resolved and can be closed when the USMS notifies the OIG that it has completed its database upgrade.  Part (b) is resolved and can be closed when the USMS provides a copy of the training module pertaining to jail inspections and notifies the OIG that jail inspection training for all districts has been completed.  In addition, please provide to the OIG a copy of the language in the current performance evaluations addressing deputy marshal performance as jail inspectors.  Part (c) is unresolved.  As pointed out by the USMS in its overview section, only 2.8 percent of state and local facilities are certified by the American Correctional Association and only 12.5 percent are certified by the National Commission on Correctional Health Care.  Statistics such as these illustrate the need for greater scrutiny of jail operations by the USMS.  The quality of jail inspections we reviewed varied considerably from district to district, with the majority lacking meaningful detail.  However, there are USMS districts that can serve as an example of how to complete well-documented jail inspections, such as Eastern California and the El Centro sub-office.  The USMS needs to assess all of its jail inspection reports and require the same thoroughness and attention to detail from all districts that it currently receives from a few districts.  In order to resolve part (c) of this recommendation, please provide the OIG by March 12, 2004, with plans to review district jail inspections and provide guidance on the minimum level of testing required to adequately complete a jail inspection.  Part (d) is resolved and can be closed when the USMS provides the OIG with the results of the PSD working group.  Please provide specific plans of action and timetables by March 12, 2004.

7. Resolved.  The USMS stated that it would disseminate guidance to the field regarding prisoner health care policy and airborne infectious disease control (e.g., TB, SARS), and require district certification of policy compliance by April 30, 2004.  While we recognize that district personnel are not medical experts, we note that many individuals are acquiring medical knowledge through AED and CPR training.  In addition, a number of the USMS districts we reviewed had deputies on staff trained and certified as Emergency Medical Technicians.  Until the USMS implements an automated system capable of national tracking of infectious TB cases, the USMS must use paper or computer-based documentation (spreadsheet or other mechanisms) to document compliance with visual screening of TB symptoms and isolation of suspected infectious airborne disease cases such as TB and SARS.  In order to close this recommendation, please provide to the OIG copies of procedural guidance to the field regarding cellblock policy and procedures, a summary report of written certification of full compliance by districts, and a definitive timeline for modification of USMS automated systems by May 7, 2004.

8. Resolved.  The USMS stated that it would disseminate guidance to the field on prisoner health care policy and airborne infectious disease control by April 30, 2004.  In order to close this recommendation, please provide to the OIG copies of procedural guidance to the field with regard to TB control policy and procedures, and a summary report of written certification of full compliance by districts by May 7, 2004.

9. Resolved.  The USMS stated that it would instruct district staff concerning documentation of TB test dates and results on Form USM 553, as well as entering the test dates and results into the PTS by  April 30, 2004.  The USMS must also direct staff to maintain either a completed copy of the form in the prisoner case files or, in the absence of these files (paper or electronic), a scanned copy of the form.  In order to close this recommendation, please provide to the OIG copies of all instructions provided to the districts in response to this recommendation concerning the documentation of TB test dates and results by May 7, 2004.

10. Resolved.  The USMS stated that it would continue to rely on districts to report active TB cases to OIMS by phone and fax until the USMS is able to hire an additional U.S. Public Health Service Officer position as an Infectious Disease Control Officer at the national level.  This individual will track and monitor prisoner airborne infectious disease cases.  The USMS added that it does not currently have a national automated prisoner database system to track and monitor prisoner airborne infectious disease cases.  We note that the USMS’s TB policy requires districts to report all cases of active infectious TB to the OIMS.  Given the severe health consequences, we believe it would not burden the OIMS to document and compile this information.  In order to close this recommendation, please develop a computer-based system, such as a spreadsheet or other mechanism, at the OIMS to monitor and track active TB cases reported by phone, fax, or pager and provide copies to the OIG of plans describing this system by May 7, 2004.  In addition, please notify the OIG about the prospects for funding of the Public Health position by the same date.

11. Unresolved.  The USMS stated it disagrees with this recommendation, citing reliance on detention facilities for medical screening and necessary prisoner medical care from attending physicians as the reason that it should not develop and implement a policy for tracking and monitoring HIV/AIDS and Hepatitis cases.  As earlier stated and acknowledged by the USMS in its overview, only a small percentage of the local jails that the USMS claims to place full reliance on for medical screening and medical care are certified by the ACA or the NCCHC.  Further, there is some inconsistency in the USMS’s position on this issue given that it currently has policies and procedures in place for tracking and monitoring TB, and has thus acknowledged the need to track and monitor the incidence of communicable diseases.  The CDC underscores that the issue of HIV, in particular, is not readily separable from that of TB.  The CDC further points out that individuals with weakened immune systems typical of HIV infection are more likely to develop active TB.  Notably, the Eastern District of California has already incorporated the relationship between HIV/AIDS and TB into its local training curriculum.  We believe that the USMS cannot afford to ignore the connection between TB and HIV because the CDC has reported outbreaks of TB in HIV-infected inmates, including one outbreak in South Carolina during 1999-2000 and another in California during 1995-1996.  The Joint United Nations Program on HIV/AIDS stated, “Worldwide, TB is the leading cause of death among people infected with HIV.”  The problem with the USMS relying on local jails to provide medical screening is that according to the NCCHC report to Congress, dated May 2002, no major jail systems have a mandatory testing policy of inmates for HIV.
    
    With regard to the confidentiality issues cited in the USMS response, the Bureau of Justice Statistics (BJS) reported that the BOP tests all inmates for HIV at the time of release.  The BOP also tests a random sample of inmates for HIV on alternate years.  While the USMS stated that the BOP said that it does not routinely inform its guards about the HIV status of prisoners, we do not believe that the BOP practice is a suitable excuse for not reviewing the health status of USMS prisoners.  In addition to testing at the federal level, the BJS Bulletin, HIV in Prisons, 2000, dated October 2002, listed 19 state prison jurisdictions, including Colorado, Michigan, and New Hampshire, that test all incoming inmates.  Fifteen state prison jurisdictions also test inmates in high-risk groups.  The USMS also raised concerns regarding the issue of confidentiality of HIV status information.  However, this is a legal matter decided differently by each state.  The issue also is highlighted in the NCCHC Standards for Health Services in Jails:  “since the legal status regarding the confidentiality of such information varies from state to state and from time to time, the facility should keep informed of any changes enacted by legislatures or determined by the courts.”  In order to resolve this recommendation, please provide to the OIG plans to implement a system for tracking and monitoring HIV/Hepatitis status of USMS prisoners while in the custody of the USMS, similar to that of the current policies and procedures covering management of TB, by May 7, 2004.

12. Resolved.  Part (a) is resolved and can be closed upon notification that the USMS has implemented corrective actions and policy changes arising from its guard work group.  In the interim, please provide the OIG with documentation certifying district compliance with guard contract terms and guard training requirements by May 7, 2004.  Part (b) is resolved and can be closed when the USMS provides to the OIG verification that all districts have reviewed all formal guard company contracts and provided written certification of compliance with contract terms and conditions.  Please provide the aforementioned by May 7, 2004.  Part (c) is resolved.  The USMS states that collateral duties are taken into account when an evaluation is done on an employee.  In order to close this part of the recommendation, please provide to the OIG by May 7, 2004, the current performance evaluation elements that specifically address COTR performance.