DHS OIG, OIG-20-05, CBP, ICE, TSA, and Secret Service Have Taken Steps to Address Illegal and Prescription Opioid Use (2019)

CBP, ICE, TSA, and Secret Service Have Taken Steps to Address Illegal and Prescription Opioid Use November 21, 2019 OIG-20-05 DHS OIG HIGHLIGHTS CBP, ICE, TSA, and Secret Service Have Taken Steps to Address Illegal and Prescription Opioid Use   What We Found We determined that from fiscal years 2015 through 2018, in the midst of a growing opioid epidemic, U.S. Customs and Border Protection (CBP), U.S. Immigration and Customs Enforcement (ICE), Transportation Security Administration (TSA), and United States Secret Service (Secret Service) appropriately disciplined employees whose drug test results indicated illegal opioid use, based on their employee standards of conduct and tables of offenses and penalties. Additionally, during the same period, components either have implemented or are taking steps to evaluate whether employees using prescription opioids can effectively conduct their duties. For example, components established policies prohibiting the use of prescription opioids that may impact an employee’s ability to work, in addition to requiring employees to report such prescription opioid use. Components have also implemented or are in the process of implementing measures to evaluate the fitness for duty of employees using prescription opioids.

These policies establish consistent standards components can use to ensure they are allowing employees to use legally prescribed opioids, while also ensuring their workforce is capable of effectively performing their duties. CBP and Secret Service Response CBP and Secret Service concurred with the recommendations and described corrective actions they are taking and plan to take. We consider both recommendations open and resolved. November 21, 2019 Why We Did This Evaluation We conducted this review to determine how CBP, ICE, TSA, and Secret Service are addressing illegal and prescription opioid use among their employees.

What We Recommend We made two recommendations to improve components’ oversight of illegal and prescription opioid use by employees. For Further Information: Contact our Office of Public Affairs at (202) 981-6000, or email us at [email protected] www.oig.dhs.gov OIG-20-05 November 21, 2019 OFFICE OF INSPECTOR GENERAL Department of Homeland Security   Background In October 2017, the Department of Health and Human Services (HHS) declared the opioid1 epidemic a “public health emergency.” Opioids are particularly problematic because some are legally available with a prescription. Although the purpose of prescription opioids is to provide pain relief, their side effects (such as confusion, drowsiness, fatigue, and addiction) can greatly impair an employee’s ability to perform his or her job effectively. This is especially relevant for Department of Homeland Security employees who are in safety-sensitive positions that require them to carry firearms or perform essential security functions, or who have access to classified information.

It is vital that DHS components appropriately balance the rights of their employees to use legally prescribed opioids with their obligation to ensure their workforce is alert, responsible, and effective. At the same time as the public health emergency declaration, HHS revised its Mandatory Guidelines for Federal Workplace Drug Testing Programs (Mandatory Guidelines) in October 2017 to include four prescription opioids (oxycodone, oxymorphone, hydrocodone, and hydromorphone) on the Federal drug-testing panel.2 DHS components, including U.S. Customs and Border Protection (CBP), U.S. Immigration and Customs Enforcement (ICE), the Transportation Security Administration (TSA), and United States Secret Service (Secret Service) develop their own drug-free workplace plans based on the DHS plan, which must be certified by HHS. Each plan details the various conditions for employee drug testing, including random testing and reasonable suspicion testing. Under the random testing program, at least 10 percent of Testing Designated Position (TDP)3 employees undergo a random drug test each year.

TDP employees are eligible for random drug testing because of the type of work they conduct or the type of information they access. For example, law enforcement personnel such as CBP Border Patrol Agents, ICE Special Agents, TSA Federal Air Marshals, and Secret Service Special Agents are TDP employees. Table 1 indicates the total number of TDP employees at the four components from FY 2015 to FY 2018, as well as the number of random drug tests that each component conducted. In those 4 years, the components conducted more than 100,000 random drug tests of TDP employees.  1 The term “opioids” refers to both synthetic opioids, such as oxycodone, hydromorphone, and fentanyl, and natural opiates, which are naturally derived substances from an opium poppy plant, such as morphine and codeine.

2 The Federal drug-testing panel is a list of drugs for which an employee is to be tested. The panel commonly includes five categories of drugs: amphetamines, cocaine, marijuana, opiates, and phencyclidine (PCP). 3 TDP employees include employees who carry or are authorized to carry firearms, operators of motor vehicles, and those with secret level or higher security clearances. 2 OFFICE OF INSPECTOR GENERAL Department of Homeland Security   Table 1: Number of TDPs and Random Drug Tests, FY 2015 – FY 2018 CBP ICE TSA Secret Service Total TDPs Random Drug Tests Total TDPs Random Drug Tests Total TDPs Random Drug Tests Total TDPs Random Drug Tests FY 15 56,049 6,224 15,785 1,566 54,733 18,315 6,785 1,328 FY 16 55,841 6,254 16,100 1,610 55,235 18,801 6,502 1,198 FY 17 55,877 7,396 16,085 1,612 56,431 18,675 6,795 1,204 FY 18 55,761 7,477 16,394 1,2444 56,254 19,630 7,064 1,151 Source: Data received from components In addition to random drug testing, components may also require employees to undergo reasonable suspicion drug testing if a supervisor has a reasonable suspicion that a TDP employee is using illegal drugs on or off duty.

This reasonable suspicion could be based on direct observation of drug use, a pattern of abnormal conduct or erratic behavior, or arrest or conviction for a drug-related offense. Very few reasonable suspicion drug tests were conducted compared to random drug tests, as indicated in table 2. Table 2: Number of Reasonable Suspicion Drug Tests, FY 2015 – FY 2018 CBP ICE TSA FY 15 FY 16 FY 17 FY 18 9 10 13 10 Source: Data received from components 2 2 3 0 11 13 9 11 Secret Service 0 0 0 1 CBP, ICE, TSA, and Secret Service contract with laboratories to conduct both random and reasonable suspicion drug tests. The laboratories then send the test results to a Medical Review Officer (MRO), who is a licensed physician and may be either a DHS employee or outside contractor.

The MRO verifies all drug testing results. For test results indicating opioid use, the MRO reviews any prescriptions, medical records, and other medical information provided by the employee to determine whether the employee has a valid medical explanation. If there is no valid medical explanation, the MRO reports a positive result to the component. If the employee has a valid medical explanation, the MRO reports a negative test result to the component.  4 ICE officials reported that it did not meet the 10 percent requirement in FY 2018 due to the drug program coordinator position being vacant for several months.

3 OFFICE OF INSPECTOR GENERAL Department of Homeland Security   Results of Evaluation From FY 2015 through FY 2018, CBP, ICE, TSA, and Secret Service conducted more than 100,000 random drug tests, of which 31 were positive for illegal opioid use. We confirmed that, for each of the employees who tested positive for illegal opioid drug use, the components took disciplinary action consistent with applicable employee standards of conduct and tables of offenses and penalties. In addition, the components have taken additional steps to address prescription opioid use, including establishing various policies to ensure they are aware of prescription opioid use that may affect an employee’s ability to perform work. They also implemented or are in the process of implementing measures to evaluate the fitness for duty of employees using prescription opioids.

These policies establish consistent standards components can use to ensure that they are allowing employees to use legally prescribed opioids, while also ensuring their workforce is capable of effectively performing their duties. Components Appropriately Disciplined Employees Whose Drug Tests Indicated Illegal Opioid Use From FY 2015 through FY 2018, a small number of employees at CBP, TSA, and Secret Service tested positive for illegal opioid use.5 Based on our review of the components’ investigative and disciplinary files, we found the components appropriately disciplined the employees based on their tables of offenses and penalties. The employee standards of conduct for CBP, ICE, TSA, and Secret Service specifically prohibit the use of illegal drugs or controlled substances.6 Each component’s respective table of offenses and penalties provides a range of penalties for illegal drug use, up to and including removal. Table 3 describes the specific offense charge, as well as the penalty for the first offense, for the four components.  5 ICE did not have any positive illegal opioid tests during the scope of our review.

6 A controlled substance is defined as a drug or other substance that is tightly controlled by the Government because it may be abused or cause addiction. Some controlled substances with known medical use, such as morphine, are only available with a prescription from a licensed medical professional. Other controlled substances, such as heroin, have no known medical use and are illegal in the United States. 4 OFFICE OF INSPECTOR GENERAL Department of Homeland Security   Table 3: Offense Charges and Penalties for Illegal Drug Use Component Specific Offense Charge CBP ICE TSA Secret Service Possession, use, sale, or distribution of illegal drugs or controlled substances Possession, use, sale, or distribution of illegal drugs; unauthorized possession, use, sale, or distribution of controlled substances Unauthorized possession, use, sale, or distribution of illegal drugs or controlled substances Knowingly and consciously ingesting, injecting, inhaling, possessing, selling, or distributing an illegal controlled substance or anabolic steroid, on or off duty, after entering on duty Penalty for First Offense Removal 60-day suspension to removal Removal 21-day suspension to removal Source: CBP, ICE, TSA and Secret Service tables of offenses and penalties Although the number of employees who tested positive for illegal opioid use rose from FY 2015 to FY 2018, the total number of employees who tested positive in FY 2018 remained very small.

As shown in table 4, only 18 of the 29,524 employees who underwent random or reasonable suspicion drug testing in FY 2018 at the four components tested positive for illegal opioid use. Table 4: Number of Positive Opioid Drug Tests, FY 2015 – FY 2018 CBP ICE TSA Secret Service Positive Opioid Tests FY 15 FY 16 FY 17 FY 18 0 0 1 2 Total Drug Tests 6,233 6,264 7,409 7,487 Positive Opioid Tests 0 0 0 0 Total Drug Tests 1,568 1,612 1,615 1,244 Source: Data received from components Positive Opioid Tests Total Drug Tests Positive Opioid Tests 0 9 3 18,326 18,814 18,684 15 19,641 0 0 0 1 Total Drug Tests 1,328 1,198 1,204 1,152 We reviewed the accompanying available case files7 for the positive opioid drug tests from FY 2015 to FY 2018 and determined that the components disciplined the employees in accordance with their tables of offenses and penalties. Specifically, we found that: x CBP reported three positive opioid drug tests; two employees were removed and the third employee resigned.  7 TSA was unable to locate two case files. 5 OFFICE OF INSPECTOR GENERAL Department of Homeland Security   x ICE did not report any positive drug tests for illegal opioid use during the time of our review. x TSA reported 27 positive opioid drug tests; 13 employees were removed and 12 resigned.

TSA was unable to locate complete case files for two individuals at the time of our review.8 x Secret Service reported one positive opioid drug test. During the investigation, officials determined that the employee unknowingly ingested codeine in cough syrup, and chose to require the employee to undergo periodic drug testing for 2 years rather than suspend or remove the employee.9 According to the files we reviewed through June 2019, all subsequent drug tests of the employee were negative. Based on our analysis of the case files, we concluded that the components appropriately disciplined those employees who had tested positive for illegal opioid use. Components Have Taken Steps to Identify and Address Prescription Opioid Use that Could Affect Employees’ Ability to Effectively Conduct Their Duties In addition to addressing illegal opioid use, components have various measures in place to ensure they are aware of their employees’ prescription drug use, and can take action if that use affects employees’ ability to perform work effectively.

These measures, including specific offense charges and reporting requirements for prescription drug misuse, requirements for MROs to notify components of prescription drug use, and fitness for duty evaluations for employees using prescription drugs, balance the rights of employees to use legally prescribed opioids with their obligation to ensure their workforce is alert, responsible, and effective. ICE, TSA and Secret Service Have Reporting Requirements or Offense Charges Related to Prescription Drug Misuse Components have devised various approaches to ensure their employees understand that misuse of prescription drugs is prohibited. For example, ICE’s table of offenses and penalties prohibits employees from:  8 For one employee, TSA provided the positive opioid drug test record but could not locate the associated disciplinary file. For the other employee, TSA officials indicated the airport where the employee was located most likely failed to provide the case files because the employee resigned or retired prior to any action being taken.

9 Guidance regarding Federal workplace drug-testing programs for MROs describes how codeine is commonly used to prevent a cough, and is found in liquid cough suppressant preparations. 6 OFFICE OF INSPECTOR GENERAL Department of Homeland Security   [reporting] for or being on duty under the influence of … [an] impairing legal substance to a degree that would interfere with proper performance of duty, be a risk to safety, or be prejudicial to the maintenance of discipline. Similarly, TSA’s table of offenses and penalties prohibits employees from “consuming … medication, prescribed and over-the-counter, which impairs judgment/ability to safely use and control a firearm.” At the time of our fieldwork, Secret Service did not have a specific charge regarding the use of prescription drugs that would interfere with one’s work performance, but its reporting requirements state that employees must report “the misuse of prescription/legal drugs.”10 Neither TSA’s nor ICE’s table of offenses and penalties, nor Secret Service’s reporting requirements, however, include guidance for the employees on how to determine whether their prescription drug use would interfere with their work performance. Of the four components, only CBP does not prohibit in its table of offenses and penalties the use of prescription medication that would impair an employee, or require employees to report misuse.

By creating standards concerning prescription drugs, the other three components have taken steps to clarify expectations that prescription drug use affecting employees’ work performance will not be tolerated. MROs for CBP, ICE, and TSA Notify Components of Safety Concerns Related to Prescription Opioid Use Voluntarily Through their drug testing programs, components may be made aware of possible misuse of prescription opioids by their employees. Specifically, when an MRO determines that an employee has a valid medical explanation for opioid use, the MRO must report a negative result to the component. However, the MRO may still believe the medication could impair the employee’s abilities to perform his or her job, resulting in a “safety concern.” The Medical Review Officer Guidance Manual for Federal Workplace Drug Testing Programs (MRO Manual), which guides MROs in carrying out their responsibilities, explains: [The] donor may be taking a legal prescription medication as treatment for a medical condition and the medication may have possible side effects that may impair the mental and/or physical abilities required for the performance of potentially hazardous tasks (e.g., driving a car or truck, operating machinery).

If an MRO is given information that indicates that a donor’s use of a legitimately prescribed medication creates a safety risk (given the donor’s job  10 801.700 U.S. Secret Service Reporting Requirements, January 9, 2018 7 OFFICE OF INSPECTOR GENERAL Department of Homeland Security   functions), the MRO may be faced with a decision about what to do with this information. According to the MRO Manual, the MRO’s decision to contact a donor’s employer about these safety risks is subject to the MRO’s voluntary choice and is not required. Absent any requirement to do so, the MROs for CBP, ICE, and TSA nonetheless notify the components of safety concerns associated with employees’ prescription opioid use. In contrast, the MRO for Secret Service has elected not to notify the component of safety concerns.

Since the addition of the four prescription opioids to the drug-testing panel in October 2017, the MROs at CBP, ICE, and TSA have informed the components of safety concerns regarding 14 employees. MROs that we interviewed stated they chose to share safety concerns with components, even when not required, so that component officials could decide whether to take additional action with respect to the employee. One MRO stated that she was not in the position to determine whether prescription opioid use could pose a risk to the type of work an employee performed, and that this decision should be left to the component. Recently, ICE officials decided to require notifications from the MRO for drug test results that indicate prescription drug use.

ICE’s most recent draft Performance Work Statement (PWS)11 for its MRO would require the MRO to notify the component of any instances when “a tested substance is detected, but a current, valid prescription for that substance is provided, therefore, the final result is reported as negative.” ICE officials stated the reason for the change is to ensure the component is aware of all results that are reported negative because the employee has a valid medical explanation. ICE hopes to finalize the PWS in FY 2020. Because Secret Service does not receive similar results from its MRO, Secret Service is at a disadvantage as compared to its peer components to assess whether prescribed use of opioids presents a potential safety risk. Components Are Taking Steps to Evaluate Employees’ Fitness for Duty when Drug Testing Results Indicate Safety Concerns When a component is made aware of a safety concern related to an employee’s prescription opioid use, the component can choose to evaluate the employee’s fitness for duty (i.e., ability to safely and effectively perform work).

As of April 2019, only TSA’s fitness-for-duty policy requires employees to undergo an evaluation specifically because of prescription drug use that could affect their work performance. TSA policy states managers may require employees  11 A Performance Work Statement describes work that a Federal contractor must perform in terms of required results. 8 OFFICE OF INSPECTOR GENERAL Department of Homeland Security   undergo a fitness-for-duty evaluation when drug test results “show use of a legally prescribed medication that may adversely impact performance of safety/security sensitive functions.”12 Although CBP and Secret Service had fitness-for-duty evaluation policies in place at the time of our fieldwork, these policies do not currently require evaluations based on safety concerns associated with prescription opioid use. CBP officials told us they are updating their policy to include safety concerns for prescription opioid use.

Finally, ICE is in the process of drafting a standard fitness-for-duty evaluation policy, and is considering adding safety concerns for prescription opioid use as a reason to conduct an evaluation. At the time of our fieldwork, the components had not yet finalized these policies. Recommendations We recommend the Acting Commissioner of CBP: Recommendation 1: Address the misuse of prescription opioids in either its table of offenses penalties and standards of conduct, or in employees’ reporting requirements. We recommend the Director of Secret Service: Recommendation 2: Evaluate whether to require its Medical Review Officer to provide safety concern notifications associated with employees’ prescription opioid use.

Management Comments and OIG Analysis CBP and Secret Service concurred with the recommendations. Appendix A contains a copy of CBP’s and Secret Service’s management comments in their entirety. We also received technical comments and incorporated them in the report where appropriate. We consider both recommendations resolved and open.

A summary of CBP’s and Secret Service’s responses and our analysis follows. CBP Response to Recommendation 1: CBP concurred with the recommendation. CBP’s Human Resources staff is in the process of negotiating a revised Table of Offenses and Penalties, which includes a new misconduct category to address prescription medication use. CBP estimates completion by September 30, 2020.  12 TSA Management Directive No. 1100.33-2, Management-Initiated Fitness-for-Duty Evaluations, December 9, 2016 9 OFFICE OF INSPECTOR GENERAL Department of Homeland Security   OIG Analysis: We consider this action responsive to the recommendation, which is resolved and open.

We will close this recommendation when we receive documentation showing that CBP has finalized the revision to the Table of Offenses and Penalties addressing prescription medication use. Secret Service Response to Recommendation 2: Secret Service concurred with the recommendation. Secret Service recognizes the importance of receiving safety concern notifications from the MRO and is in the process of entering a new Inter-Agency Agreement (IAA) that will specifically allow for safety concern notifications in response to random drug tests. Once the appropriate documentation is signed and approved, Secret Service will provide its Office of Professional Responsibility with the relevant documents that address this recommendation, and will also provide copies of the IAA to the OIG.

Secret Service estimates completion by January 31, 2020. OIG Analysis: We consider this action responsive to the recommendation, which is resolved and open. We will close this recommendation when we receive copies of the new IAA. Objective, Scope, and Methodology The Department of Homeland Security (DHS) Office of Inspector General (OIG) was established by the Homeland Security Act of 2002 (Public Law 107ï296) by amendment to the Inspector General Act of 1978.

We conducted this review to determine how CBP, ICE, TSA, and Secret Service are addressing illegal and prescription opioid use by employees in Testing Designated Positions. We reviewed DHS and component policies dealing with workplace drug programs, fitness for duty, and consequences of drug use, as well as statements of work with MRO contractors. We also reviewed and analyzed the records from random and reasonable suspicion drug testing, MRO results, and fitness for duty evaluations and noted the components’ responses to those results. The Secret Service MRO provided records via subpoena.

We interviewed DHS, CBP, ICE, TSA, and Secret Service leadership with oversight of Federal Drug-Free Workplace Programs, fitness for duty evaluations, employee relations and administrative or disciplinary actions, and Employee Assistance Programs. We also interviewed the contracted and component MROs for CBP, ICE, TSA, and Secret Service. We also spoke with counsel for the MROs concerning the test reporting process, attendant policies, 10 OFFICE OF INSPECTOR GENERAL Department of Homeland Security   and associated documentation. Additionally, we spoke with representatives from HHS’ Substance Abuse and Mental Health Administration.

We conducted this inspection between May 2018 and April 2019 under the authority of the Inspector General Act of 1978, as amended, and according to the Quality Standards for Inspection and Evaluation issued by the Council of the Inspectors General on Integrity and Efficiency. The evidence obtained provides a reasonable basis for our findings and conclusions based upon our objectives. The Office of Special Reviews and Evaluations major contributors to this report are: Erika Lang, Chief Inspector; Marybeth Dellibovi, Program Analyst; Anthony Crawford, Intelligence Officer; Brittany Scott, Program Analyst; and Ian Stumpf, Independent Referencer. The Office of Counsel contributors to this report are: Kenneth Kaplan, Attorney Advisor; and Necia Chambliss, Attorney Advisor.  11 OFFICE OF INSPECTOR GENERAL Department of Homeland Security   Appendix A CBP and Secret Service Comments to the Draft Report  12 OFFICE OF INSPECTOR GENERAL Department of Homeland Security   13 OFFICE OF INSPECTOR GENERAL Department of Homeland Security   14 OFFICE OF INSPECTOR GENERAL Department of Homeland Security   Appendix B Report Distribution Department of Homeland Security Secretary Deputy Secretary Chief of Staff Deputy Chiefs of Staff General Counsel Executive Secretary Director, GAO/OIG Liaison Office Assistant Secretary for Office of Strategy, Policy, and Plans Assistant Secretary for Office of Public Affairs Assistant Secretary for Office of Legislative Affairs CBP Commissioner ICE Director TSA Administrator Secret Service Director DHS Component Liaison Office of Management and Budget Chief, Homeland Security Branch DHS OIG Budget Examiner Congress Congressional Oversight and Appropriations Committees 15 Additional Information and Copies To view this and any of our other reports, please visit our website at: www.oig.dhs.gov.

For further information or questions, please contact Office of Inspector General Public Affairs at: [email protected]. Follow us on Twitter at: @dhsoig. OIG Hotline  To report fraud, waste, or abuse, visit our website at www.oig.dhs.gov and click on the red "Hotline" tab. If you cannot access our website, call our hotline at (800) 323-8603, fax our hotline at (202) 254-4297, or write to us at: Department of Homeland Security Office of Inspector General, Mail Stop 0305 Attention: Hotline 245 Murray Drive, SW Washington, DC 20528-0305