II. DFW PROGRAM IMPLEMENTATION

The components did not implement their DFW programs according to the DOJ plan, their plans, and other policy guidance in areas such as deferrals from random testing, disclosure of test results, and security of files.

A. Deferrals from Random Testing

It is not uncommon that components will select employees for random drug testing who are on leave, on official duty away from their work site, or about to embark on official travel. The DOJ DFW policy requires an employee's first- and second-line supervisors' concurrence whenever making a deferral.

While the BOP and FBI were following the DOJ DFW plan for deferring employees from random testing, the DEA, INS, USMS, and JMD were not. If a supervisor defers an employee from testing, the DOJ plan states that the employee will be subject to unannounced random drug testing within the following 60 days.

The DEA was not testing deferred employees. The DEA Chief of Health Services believed deferrals gave employees an opportunity to purge their bodies of illegal drugs because they knew the DFW Coordinator would schedule a test within 60 days. However, the DOJ plan states that notification procedures should ensure that employees will not have premature notice of random selection. Therefore, if an employee is not available for random drug testing, the supervisor should not inform the employee of the deferral, thus ensuring that the Coordinator could conduct a test within 60 days without an employee's prior knowledge or expectation.

For the review period, DEA selected 1,630 employees for random testing. DEA reported testing 972 employees, thus leaving 658 employees not tested. Reasons given for 521 employees not tested included jury duty, annual leave, and no funds. Supervisors deferred 137 employees, or 21 percent, without the DEA DFW office having either supervisory written justification for the deferrals or documenting a reason for the deferrals. On February 27, 1989, the Assistant Attorney General, Civil Division, approved DEA's request to have the option to exempt employees from mandatory 60-day retest requirements. However, the approval required supervisors to inform the DFW Coordinator in writing with the reason for the deferral.

In the USMS, the DFW Coordinator believed that a deferral from random testing was an option and not required by the DOJ DFW plan. Supervisors completed deferral forms, but employees were not subject to testing within 60 days. In INS, the DFW Coordinator did not conduct follow-up tests within 60 days, but usually completed them at the end of the calendar year. The JMD conducted 17, or 10 percent, of its random drug tests 60 or more days after the random selection. The JMD Coordinator attributed these testing deferrals to scheduling problems based on good management reasons.

By not adhering to the procedures for deferring a random drug test, DEA, INS, USMS, and JMD diminish program controls for ensuring the integrity of the random pool selection and testing processes.

B. Disclosure of DFW Test Results

At the FBI, the laboratory sends drug test results by computer to the Drug Deterrence Program (DDP) office even though Federal policy and the DOJ DFW plan require that such test results be sent directly to the MRO. The FBI's Acting Health Services Administrator stated that results went to the DDP office because the area was more secure than the MRO's office, a heavily travelled area.

Although the FBI appears to have the protection of the privacy of persons tested in mind, this procedure technically violates Federal policy, which forbids the disclosure of a Federal employee's drug test results without the prior written consent of the employee unless the disclosure is to the MRO or other specified individuals.

C. Security of DFW Files

The inspection team observed insufficient office security and privacy for the INS DFW staff and records. The offices of the DFW Coordinator and the Drug Program Assistant (DPA) were in an open office area and did not provide privacy as required by the DOJ and INS DFW plans. The Coordinator's office had a lockable door but it was not enclosed as the modular walls did not go to the ceiling. The DPA's work area was an open cubicle without a door. Some DFW file cabinets were out of view of either the Coordinator or DPA. During portions of our field visit, the DFW staff left file cabinet drawers unlocked, providing the opportunity for unauthorized access to the DFW files. Because of the sensitive nature of the work, INS should consider providing office space with a sufficient degree of privacy for maintaining program confidentiality and notifying DFW staff to keep files locked at all times.

RECOMMENDATIONS:

The Inspections Division recommends that the:

8. Commissioner, INS; Director, USMS; and AAG/A instruct their DFW Coordinators to conduct the rescheduling of employees deferred from random drug testing according to the requirements of the DOJ DFW plan or to seek formal approval to deviate from the plan.

9. Administrator, DEA, instruct the DFW Coordinator to conduct the rescheduling of employees deferred from random drug testing according to the requirements of the DOJ DFW plan and require exemptions to this procedure be in writing.

10. Director, FBI, instruct the MRO to arrange to receive

all DFW drug tests results directly and to provide adequate security for those test results.

11. Commissioner, INS, instruct the DFW Coordinator to ensure that DFW files are secure and accessible only to appropriate personnel.

 

III. DEPARTMENTAL DFW OVERSIGHT

The Department could improve the DFW program if it established additional policy guidance and procedures as well as if it coordinated administrative activities of the program.

A. DOJ DFW Policies and Procedures

The DOJ DFW plan establishes Department-wide policies and procedures for conducting the program. Generally, all of the components' DFW plans conformed to the DOJ DFW plan. However, each component deviated to some extent from the drug testing requirements of the DOJ plan and from their own plans.

The Department's DFW program is decentralized, and the components can implement the program to meet their mission needs. We believe this is the most effective structure, but some overall program oversight of policy and administrative activities is needed for full program compliance. For example, as described earlier, the DOJ plan does not provide policy and guidance for testing newly appointed Presidential and political appointees. In addition, although DEA and BOP had revised their DFW plans, the DOJ plan does not define a way to request approval of DFW plan revisions or to seek exemption from drug testing requirements. According to the Civil Division and the HHS officials, significant plan revisions require prior consultative review by the Interagency Coordinating Group Executive Committee.

The components should request approval for deviating from DOJ DFW testing requirements to ensure the integrity and effectiveness of the program and to ensure that components conduct drug testing according to the requirements of the Order and the DOJ plan.

B. DFW Program Costs

The following table provides components' DFW costs and the number of applicant and employee tests as reported in their semiannual reports.

In addition to applicant and employee tests listed above, components conducted a total of 2,970 quality control tests [ To test the accuracy of the laboratory, components are required to send samples known to be positive and negative on a quarterly basis. ] from October 1, 1992 through March 31, 1994.

The direct costs for the six DFW programs for fiscal year (FY) 1993 and the first half of FY 1994 were over $2.1 million. Direct costs included salaries, contract specimen collection services, laboratory testing of specimens, review of the test results by contract MRO, specimen kits, and chain of custody forms. Direct costs for BOP and INS also included an interagency contract fee, and JMD's direct costs included a DFW office rental expenditure.

Our analysis and comparison of the types of services and items procured for the DFW program by the DOJ components showed that costs varied significantly among components. For instance, components' costs for specimen kits ranged from $1.19 to $3.45 and chain of custody forms ranged from $.22 to $.88. These are two required items for each drug test. Additional prices paid to the contractors by the DOJ components for the DFW program during FY 1993 and the first 6 months of FY 1994 are shown in Appendix II.

Each DOJ component uses contracts or purchase orders to obtain services for their DFW programs. BOP and INS use Department of the Interior contracts for testing; the FBI, DEA, and USMS coordinated their needs and use two FBI contracts; and JMD issued a contract, which all DOJ components could have used. However, the individual components were not aware of lower prices obtained under the other components' contracts or that they could have used JMD's laboratory analysis contract.

In our view, the components could accrue savings by coordinating their needs within DOJ and sharing information regarding the prices paid for services. While JMD and USMS paid $150 per hour for the review of positive drug tests by the MRO, DEA only paid the MRO $5.73 per positive drug test. However, DEA paid $5.73 for the review of each negative drug test, while JMD and USMS paid $2.75 and INS paid $1.95.

We encourage coordination and discussion among all the DOJ components when determining their DFW program service requirements, procurement methods, and contractual commitments. Furthermore, we suggest Coordinators pursue opportunities to reduce the cost of their drug testing programs.

C. DFW Supervisory Training and Employee Education

Components' DFW supervisory training and employee education provide another deterrence tool, in addition to drug testing, in identifying and helping the at-risk employee in the work place. However, the benefits of supervisory training and employee education are not as easily identifiable as the results of a drug test. DFW Coordinators view DFW education as costly even though there has been no real breakdown of employee training costs as a part of total DFW costs.

The components reported in their semiannual reports for October 1, 1992 through March 31, 1994, that 77,049 supervisors and employees received some form of continuing drug education. In the BOP and USMS, some employees received training on several occasions, which accounts for the high rate of training. JMD reported no employee training for the period. The following table provides a breakdown on this training as well as the percentage of component employees occupying TDPs.

The semiannual report form combines the reporting of educational materials received and training received under one category. As a result, we found it difficult to compare training activities among the components and to assess overall DFW training efforts.

D. Components' DFW Initiatives

BOP had developed a specimen collector training video including a computerized proficiency test to meet its needs for field office specimen collector training and certification. In addition, the DEA had developed an in-house specimen collection training videotape, and the USMS had developed a videotape explaining its drug program, collection procedures, and the integrity safeguards of the program. The INS contracted DFW training to include the Home Box Office film, "How to Raise a Drug-Free Child."

To safeguard against lost DFW program information, the FBI regularly updates its "Drug Deterrence Program Milestones & Project," a historical chronology of its program. Also, the FBI developed a Drug Deterrence Newsletter, which the Coordinator distributes to its field offices but not to the other DOJ DFW Coordinators.

In our view, these individual component initiatives are useful program aids, and components should share them. We suggest that components regularly meet to share information on DFW programs and initiatives.

RECOMMENDATIONS:

The Inspections Division recommends that the AAG/A:

12. Assign oversight responsibilities for the DOJ DFW program.

13. Revise the DOJ plan to include procedures for testing Presidential and political appointees.

14. Revise the DOJ plan to include procedures for components to request exemptions from DOJ requirements and to revise their DFW plans.

IV. INSPECTION SUMMARY

The Department issued a Department-wide plan that provided basic guidance for program implementation. Each component also developed its own DFW plan that complied with the Department's plan. During the last 8 years, components' requirements have changed and testing practices have been modified to meet the components' needs. However, the Department has not established procedures to accommodate these changes and has not assigned oversight responsibilities for maintaining overall policy and program guidance. Furthermore, the Department does not have a mechanism for components to routinely share program and cost information.

Overall, the BOP and FBI had the most active DFW programs in the Department, using most of the available drug testing categories and providing employee DFW education. DEA had not implemented applicant testing nor followed its random testing exemption guidance. JMD's random testing policies and procedures did not provide assurance for an impartial program.

Accordingly, this report provides a broad range of suggestions for improving the Department's DFW program. For clarity, the recommendations are restated and categorized by component.

The Inspections Division recommends that the Director, BOP:

· Discontinue the policy of testing applicants who are not offered employment or seek approval from the AAG/A to continue this practice (Recommendation 2).

The Inspections Division recommends that the Administrator, DEA:

· Conduct applicant drug testing (Recommendation 1).

· Instruct the DFW Coordinator to conduct the rescheduling of employees deferred from random drug testing according to the requirements of the DOJ DFW plan and require exemptions to this procedure in writing (Recommendation 9).

The Inspections Division recommends that the Director, FBI:

· Discontinue the policy of testing applicants who are not offered employment or seek approval from the AAG/A to continue this practice (Recommendation 2).

· Direct the DFW Coordinator to drug test its Presidential appointee (Recommendation 4).

· Instruct the MRO to arrange to receive all DFW drug tests results directly and to provide adequate security for those test results (Recommendation 10).

The Inspections Division recommends that the Commissioner, INS:

· Discontinue the policy of testing applicants who are not offered employment or seek approval from the AAG/A to continue this practice (Recommendation 2).

· Request an exemption from the DOJ plan to exclude applicant testing of employees in positions of 90 days or less, and for minors (Recommendation 3).

· Instruct the DFW Coordinator to conduct the rescheduling of employees deferred from random drug testing according to the requirements of the DOJ DFW plan or to seek formal approval to deviate from the plan (Recommendation 8).

· Instruct the DFW Coordinator to ensure that DFW files are secure and accessible only to appropriate personnel (Recommendation 11).

The Inspections Division recommends that the Director, USMS:

· Direct the DFW Coordinator to complete drug testing of Presidential appointees who have not been drug tested (Recommendation 4).

· Direct the DFW Coordinator to conduct follow-up testing according to the DOJ DFW plan (Recommendation 7).

· Instruct the DFW Coordinator to conduct the rescheduling of employees deferred from random drug testing according to the requirements of the DOJ DFW plan or to seek formal approval to deviate from the plan (Recommendation 8).

The Inspections Division recommends that the AAG/A:

· Direct the DFW Coordinator to complete drug testing of Presidential appointees who have not been drug tested (Recommendation 4).

· Take action to vacate the injunction and revise JMD's DFW policies and procedures. If it is not feasible to vacate the injunction, the AAG/A should determine the appropriate procedures to conduct random testing within the OBDs (Recommendation 5).

· Develop random testing procedures to ensure all employees in TDPs are included in the pool and employees selected are properly notified of the drug test as required (Recommendation 6).

· Instruct the DFW Coordinator to conduct the rescheduling of employees deferred from random drug testing according to the requirements of the DOJ DFW plan or to seek formal approval to deviate from the plan (Recommendation 8).

· Assign oversight responsibilities for the DOJ DFW program (Recommendation 12).

· Revise the DOJ plan to include procedures for testing Presidential and political appointees (Recommendation 13).

· Revise the DOJ plan to include procedures for components to request exemptions from DOJ requirements and to revise their DFW plans (Recommendation 14).

APPENDIX I

SCOPE AND METHODOLOGY

The inspection included a review of the DOJ DFW program from October 1, 1992 through March 31, 1994. The BOP, DEA, FBI, INS, USMS, and the JMD administer DFW programs. JMD administers the DFW program for all the Department's OBDs.

We systematically collected information through interview and document review at each headquarters location to assess whether the programs were operating according to the Department's and the component's guidance.

We also interviewed personnel in the Civil Division's Federal Programs Branch; the DEA's, the FBI's, and Department's OPR; JMD's SEPS; and the components' EAP offices. Also, we met with officials from HHS, Division of Workplace Programs.

We reviewed applicable laws, regulations, policies, and plans relating to DFW programs. Also, we reviewed the DOJ administrative procedures for drug testing, employee and applicant drug-testing records and reports, contracts and purchase orders, and contractor invoices for the collection of urine specimens and drug testing. As part of our review, we observed the administrative process for random specimen collections of employees at DEA and FBI and the administrative process for applicant specimen collections at BOP. In addition, we attended DFW supervisory and employee training offered by the FBI, INS, and JMD and reviewed BOP's computerized specimen collector training module, including the certification examination.

Our review did not include an assessment of drug testing programs for contract employees. The DFW program regulations do not cover testing of contract employees.

APPENDIX III

ABBREVIATIONS

AAG/A - Assistant Attorney General for Administration

BOP - Bureau of Prisons

DDP - Drug Deterrence Program

DPA - Drug Program Assistant

DEA - Drug Enforcement Administration

DFW - Drug-Free Workplace

DOJ/Department - Department of Justice

EAP - Employee Assistance Program

FBI - Federal Bureau of Investigation

FY - Fiscal Year

HHS - Department of Health and Human Services

INS - Immigration and Naturalization Service

JMD - Justice Management Division

Mandatory
Guidelines
Model Plan - Mandatory Guidelines for Federal Workplace Drug Testing Programs Model Plan for a Comprehensive Workplace Program

MRO - Medical Review Officer

OBD - Offices, Boards, and Divisions

ONDCP - Office of National Drug Control Policy

OPM - Office of Personnel Management

OPR - Office of Professional Responsibility

Order - Executive Order 12564

PAS - Presidential Appointment with Senate Confirmation

SEPS - Security and Emergency Planning Staff

TDP - Testing Designated Position

USMS - United States Marshals Service

APPENDIX X

OFFICE OF THE INSPECTOR GENERAL'S ANALYSIS OF MANAGEMENTS' RESPONSES

On January 30, 1996, the Inspections Division sent copies of the draft report to the BOP, DEA, FBI, INS, USMS, and JMD. Our analyses of the responses from the components follow.

Bureau of Prisons

1. Recommendation 2 - Resolved-Open. We agree with the proposed corrective action to seek approval to drug test minimally successful applicants. Please let us know when you have obtained approval for your practice of drug testing applicants as part of your applicant screening process.

Drug Enforcement Administration

1. Recommendation 1 - Resolved-Open. We agree with the proposed corrective action to test all applicants. Please inform us when applicant testing has been implemented.

2. Recommendation 9 - Resolved-Open. We agree with the proposed corrective action to conduct unannounced testing within 60 days of a deferred random drug test. Please inform us when your revised 60-day retest procedures are implemented.

Federal Bureau of Investigation

1. Recommendation 2 - Resolved-Closed. We agree with the corrective action taken. We require no further response.

2. Recommendation 4 - Resolved-Closed. We agree with the corrective action taken. We require no further response.

3. Recommendation 10 - Resolved-Closed. We agree with the corrective action taken. We require no further response.

Immigration and Naturalization Service

1. Recommendation 2 - Resolved-Closed. We agree with the corrective action taken. We require no further response.

2. Recommendation 3 - Resolved-Open. We agree with the proposed corrective action to seek approval to exempt the testing of applicants for appointments of 90 days or less, and for minors. Please let us know when you have obtained approval for your exemption request.

3. Recommendation 8 - Resolved-Closed. We agree with the corrective action taken. We require no further response.

4. Recommendation 11 - Resolved-Closed. We agree with the corrective action taken. We require no further response.

United States Marshals Service

1. Recommendation 4 - Resolved-Closed. We agree with the corrective action taken. We require no further response.

2. Recommendation 7 - Resolved-Open. We agree with the proposed corrective action. Please let us know when the revised Drug-Free Workplace directive has been issued and implemented.

3. Recommendation 8 - Resolved-Open. The USMS response indicated that it is not testing employees who are deferred from random testing but that it is looking for ways to accomplish this requirement in light of limited resources. On March 28, 1996, the USMS telephonically provided clarification to its written response, indicating that it will purchase an automated system to assist with deferred testing. The system should be on-line in 35 to 45 days at which time the USMS will conduct deferred testing in accordance with the DOJ DFW plan.

Based on this additional information, we agree with proposed corrective action. Please let us know when deferred testing is implemented in accordance with the DOJ DFW plan.

Justice Management Division

1. Recommendation 4 - Resolved-Open. We agree with the proposed corrective action. Please let us know when all Presidential appointees have been drug tested.

2. Recommendation 5 - Resolved-Open. We agree with the proposed corrective action. Please inform us on the policy decision to vacate the injunction.

3. Recommendation 6 - Resolved-Open. We agree with the proposed corrective action. Please provide us with the procedures you will use for random pool composition and selection.

4. Recommendation 8 - Resolved-Open. We agree with the proposed corrective action. Please provide us with the procedures you will follow for the drug testing of employees deferred from random testing.

5. Recommendation 12 - Resolved-Open. We agree with the proposed corrective action. Please let us know who has been assigned oversight responsibilities for the DOJ DFW program.

6. Recommendation 13 - Resolved-Open. We agree with the proposed corrective action. Please provide us with the DOJ DFW program policy and procedures for the drug testing of Presidential and political appointees.

7. Recommendation 14 - Resolved-Open. We agree with the proposed corrective action. Please provide us with DOJ DFW program policy and procedures for exemption requests.

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