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Supreme Court unanimously concludes that anti-abortion groups have no standing to challenge access to mifepristone – but the drug likely faces more court challenges

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theconversation.com – Naomi Cahn, Professor of Law, University of Virginia – 2024-06-13 19:43:45

Activists on both sides of the abortion battle are gearing up for it to be a major issue in the 2024 election.

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Naomi Cahn, University of Virginia and Sonia Suter, George Washington University

On June 13, 2024, the Supreme Court of the United States unanimously decided to uphold access to mifepristone, one of two pills used in medication abortion. Mifepristone has long been used safely and effectively in medication abortions around the world.

Shortly after the 2022 Dobbs decision that overturned 50 years of abortion rights, anti-abortion groups and doctors challenged the Food and Drug Administration's 2000 approval of mifepristone and its loosened regulations on how mifepristone is prescribed, arguing that it could not be used safely.

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asked professors of law Naomi Cahn and Sonia Suter to explain how the Supreme Court case came about and what the ruling means for access to abortion pills and abortion more generally.

How did this case get to the court?

In Food and Drug Administration v. Alliance for Hippocratic Medicine, the plaintiffs argued that the FDA had not adequately tested mifepristone for safety. They also claimed that the FDA's subsequent changes, which made the drug even more widely available, were also flawed.

In 2016, the FDA expanded the time frame for prescription of mifepristone from seven weeks to 10 weeks gestation and allowed nonphysician care providers, like nurse practitioners, to prescribe the pill. Then, in 2021, the FDA removed the in-person dispensing requirement and allowed certified pharmacies to distribute it.

The court found unanimously that the anti-abortion doctors did not have the legal basis to sue.

What does the decision mean?

As a result of the opinion, the use of mifepristone remains legal in the states that have not banned abortion.

As of June 2024, medication abortion accounts for more than 60% of abortions in the U.S.

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In its ruling, the court decided that the plaintiffs did not have standing. Standing is the legal doctrine that limits the type of cases that courts can hear to ones where there are clear and concrete harms to the parties involved.

The court explained the requirement of standing by quoting the late Justice Antonin Scalia, who stated that plaintiffs need to answer “a basic question: ‘What's it to you?'”

Justice Brett Kavanaugh's opinion for the court rejected the plaintiffs' standing for several reasons. First, it noted that the plaintiffs “do not prescribe or use mifepristone” and that the “FDA has not required the plaintiffs to do anything or to refrain from doing anything.” Thus, they are “unregulated parties who seek to challenge FDA's regulation of others.”

The court ended by noting that even if no one has standing in this particular case, the issue may “be left to the political or democratic processes” through which opponents can voice their “concerns and objections.”

Justice Clarence Thomas concurred, agreeing with the rest of the court while also writing separately to point out that the doctors did not have standing here, just as he believes “abortionists lack standing to assert the rights of their clients.”

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Supreme Court unanimously concludes that anti-abortion groups have no standing to challenge access to mifepristone – but the drug likely faces more court challenges

Studies have shown mifepristone is safe and effective.

AP Photo/Allen G. Breed

Why is this opinion significant?

This case is important because it is the first full Supreme Court opinion since the court's 2022 opinion in Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade and found no federal right to an abortion.

In holding that the plaintiffs lacked standing, the court did not address the merits of the claim. This means that the decision maintains the status quo in terms of FDA regulation of abortion pills.

But it is important to emphasize that the opinion did not take on legal questions concerning the validity of the FDA regulations or any other question concerning the FDA's authority, which means many questions remain unanswered. For example, it is not fully clear to what extent the FDA regulations take precedence over state regulations regarding the prescription of mifepristone, which is at the heart of some of the lower court cases.

Nevertheless, for the moment, the FDA allows mifepristone to be mailed via certified pharmacies and to be prescribed without in-person visits; up to 10 weeks gestation; and by nonphysician health care providers, like nurse practitioners.

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Might there be other cases involving abortion pills?

Other cases involving abortion pills are already in lower courts.

First, three statesIdaho, Kansas and Missouri – have indicated that they are ready to challenge the FDA's decision-making on mifepristone, so the issues in this case might be back at the Supreme Court.

Second, states are already restricting access to the abortion pills. In May 2024, Louisiana made the decision to treat both mifepristone and misoprostol as controlled substances, meaning that the legislature concluded – albeit without scientific evidence – that there are dependence and abuse risks involved in taking the medication. Both pills are used for purposes other than medication abortion.

Third, a federal court judge in North Carolina recently upheld some of the state's restrictions on medication abortion. This includes a requirement for an in-person consultation 72 hours in advance of the prescription, as well as an in-person examination and ultrasound before prescription. The judge's reasoning was that these requirements seemingly concerned issues “beyond regulating the safe use of mifepristone,” such as regulating the medical profession.

On the other hand, she struck down the parts of the North Carolina law that prevented patients from receiving the pills through pharmacies and taking them at home. She also blocked the requirement of an in-person follow-up appointment. In her view, these conflicted with the FDA decision to remove those requirements.

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Fourth, under a Trump administration, the FDA could decide to revert to the old requirements for prescribing mifepristone. That would be a “highly unusual” approach, but nothing bars that possibility. Moreover, it is a strategy explicitly recommended by anti-abortion activists.

Finally, there is the issue of the meaning and application of an 1873 Victorian statute, the Comstock Act, which criminalizes the mailing or shipping of any “lewd, lascivious, indecent, filthy or vile article” and anything that “is advertised or described in a manner … for producing abortion.” Anti-abortion groups believe this applies to mifepristone.

The Department of Justice, under the Biden administration, has interpreted the statute as only applying if the sender knows the recipient plans to use the pills “illegally” for abortion. However, under another administration, the DOJ might view the reach of the Comstock Act more broadly..

As we have noted before, a broad reading of the act could go beyond a prohibition on mailing the pills, even where abortion is legal; it might also apply to the distribution of any drug or medical tool – beyond just mifepristone – used to perform an abortion. These same tools are also used for other types of obstetrics and gynecology care. This could have the effect of banning abortion across the country, even where states allow abortions..

While the short-term consequences of the ruling leave mifepristone available where it is legal, this is not the last word on access to medication abortion.The Conversation

Naomi Cahn, Professor of Law, University of Virginia and Sonia Suter, Professor of Law, George Washington University

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This article is republished from The Conversation under a Creative Commons license. Read the original article.

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The Conversation

Navigating mental health treatment options can be overwhelming – a clinical psychologist explains why it’s worth the effort

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theconversation.com – Bryan Cochran, Professor of Psychology and Director of Clinical Training, University of Montana – 2024-07-08 07:04:09
Many Americans are not getting the mental care they need.
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Bryan Cochran, University of Montana

The percentage of Americans seeking mental health treatment nearly doubled between 2004 and 2022, with almost a quarter of the population reporting that they saw a mental health care professional in 2022.

This surge in help-seeking has many potential explanations. The pandemic, along with other external stressors, led to unprecedented high rates of anxiety and depression across all age groups.

Yet the majority of Americans with a mental health condition are not receiving adequate treatment or any treatment at all.

People who are pondering getting help face a lot of decisions with little information about how to navigate the system available to them.

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As a licensed clinical psychologist and director of clinical training for a clinical psychology program at the University of Montana in Missoula, I spend a lot of time thinking about how to increase folks' access to treatment. I also field a lot of practical questions that people have about the process.

It's a difficult landscape to navigate, particularly when there is a nationwide shortage of mental health care providers.

Recognizing when to seek help

Mental health conditions – technically diagnoses or disorders – are defined by either feeling distress or experiencing impairment in one or more areas of your life.

If you seek out mental health treatment, a diagnosis is often required for you to receive services. You should seek out professional advice as a first step. Clinicians make diagnostic determinations based on the Diagnostic and Statistical Manual of Mental Disorders, currently in a revised, fifth edition.

Finding adequate mental health care amid a nationwide shortage of mental health professionals is tricky, but not impossible.

Getting a diagnosis

Mental health practitioners include, but are not limited to, psychologists, social workers, counselors, psychiatric nurse practitioners and psychiatrists. Many people start with a referral to one of these providers through their primary care provider.

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There are clear differences between these professions in terms of training and scope of practice, but all require licensure. The best way to check if a practitioner's license is valid or if they have had misconduct actions is to do a search for your jurisdiction, the profession (such as psychiatrist), plus “license lookup” or “license verification” to be directed to your state's official licensure site.

The training of mental health professionals is vastly different within this broad category. Psychiatrists, psychiatric social workers and some psychologists (in states that allow it) are trained in prescribing medications for mental health conditions. Counselors and social workers typically hold a master's degree that is focused on understanding humans' well-being, methods of psychotherapy and providing treatment. Psychologists typically hold a doctorate degree and have additional, specialized training in psychological assessment, research and supervision.

The right specialist for you might be determined by your specific needs, such as an assessment or medication, but pragmatic issues are often key factors.

Paying for therapy

If you are one of the 92.1% of Americans who are fortunate to have health insurance, by law you should receive coverage for therapy that is comparable to what you would receive for medical or surgical procedures. However, mental health care is still difficult to access in many parts of the U.S.

Exact coverage may depend on your deductible, whether the therapist is in- or out-of-network, and the therapist's rates. Ethical guidelines for all of these professions dictate that a therapist should let you know about their rates, expected course of treatment and your rights as a client as soon as possible in the therapy process. Not all therapists accept Medicare or Medicaid, unfortunately; these plans often reimburse providers at lower rates than private insurance companies.

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Often the number of sessions that are covered by insurance is determined by your diagnosis. Your therapist should always be able to tell you the diagnosis that you have and what they have submitted to your insurance company. It's important to know that many mental health care providers are limited in the types of insurance that they take, if they do so at all. Check with your health care plan to see your exact coverage for mental health services, including more complex situations such as inpatient hospitalization or long-term treatment.

Many communities have excellent school-based health centers for youth and certified community behavioral health centers for all ages. These useful resources often provide “one-stop shopping” for health care and can sometimes provide therapy services on a sliding fee scale.

The first community health centers in the U.S. launched nearly 60 years ago and still provide crucial medical services, including mental health care.

What to expect in a session

The exact type of therapy you receive depends on several factors: your diagnosis, your therapist's specialized training, your goals for treatment and your preferences.

Research indicates that certain treatments are particularly effective for some specific diagnoses. Pay attention to what treatment specialty your therapist provides: Some offer specific approaches such as cognitive behavioral therapy, psychodynamic psychotherapy or dialectical behavior therapy.

Regardless of the specific type of therapy you receive, you can expect to be asked a lot of questions about your thoughts, behaviors and feelings. Information about your past challenges and successes can help to clarify the goals for treatment. Knowing when you started feeling distressed, how it's affecting your life and what you would like to be different are all important in helping your therapist to formulate a treatment plan.

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Some of the things that you talk about in therapy are likely to be painful or difficult, and it's not uncommon for you to sometimes feel worse in therapy than you felt before. This is because a lot of people have pushed away emotionally challenging aspects of their lives before coming to therapy. Coming to terms with these experiences by sharing them with your therapist is most often beneficial.

Using medication alongside conventional therapy

Medication and psychotherapy are often used in combination with one another. If the person prescribing your medication and your therapist are two different people, you'll be asked to sign a release of information for each of them so that they can coordinate your treatment.

For example, you may meet with a psychiatrist just a few times each year, but a weekly therapy session may give your therapist insight into how you are responding to medication on a more timely basis.

Certain conditions may particularly benefit from the combination of therapy and medications. For instance, major depression, obsessive-compulsive disorder (OCD) and panic disorder often have better outcomes with combined treatment. Sometimes the steps that people need to take in order for therapy to be effective, such as gradually confronting feared situations for those with OCD, are more approachable for people who are also taking effective medication.

Research has long established that having one mental health diagnosis increases the risk of having another one; for example, people who have attention-deficit/hyperactivity disorder, or ADHD, are frequently also diagnosed with other conditions such as anxiety, depression and substance use disorder. Situations where people have more than one diagnosis may also be best treated through a combination of psychotherapy and pharmacotherapy.

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Finding the right fit

Several research studies have indicated that the quality of the therapy relationship based on the client's feeling of connectedness is an important factor in treatment outcome.

If you don't feel that there's a great match between what you need and what your therapist is offering, you should keep looking for a better fit.The Conversation

Bryan Cochran, Professor of Psychology and Director of Clinical Training, University of Montana

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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The Conversation

Detroit’s legacy of housing inequity has caused long-term health impacts − these policies can help mitigate that harm

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theconversation.com – Roshanak Mehdipanah, Associate Professor in Public , University of Michigan – 2024-07-03 07:37:04
More than half of Detroiters rent Detroit's aging housing stock.
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Roshanak Mehdipanah, University of Michigan; Kate Brantley, University of Michigan, and Melika Belhaj, University of Michigan

Detroiters who face rising rents, poor living conditions and systemic barriers to affordable and safe housing are at greater risk of poor health, our research finds.

We study the connection between housing inequities and health, with the goal of informing local, state and national policy. Our focus is on how interdisciplinary research on housing relates to equity in health, race, income and aging.

Housing instability can take many forms, including living in overcrowded or inadequate conditions, having to make frequent moves or spending the bulk of household income on a place to live. These stressors can lead to an increased risk of eviction, homelessness, poor mental health and even physical illness.

Half of Detroit's residents are renters who earn a median household income of $26,704, nearly $13,000 lower than Michigan's median, according to American Community Survey data.

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We also found that 60% of renters in Detroit are cost-burdened, meaning they spend more than 30% of their income on housing-related costs, including rent and utilities.

A legacy of discriminatory housing practices

These issues didn't develop overnight. Detroit's current racial housing inequities are influenced by the legacy of redlining. Redlining refers to the federally sponsored practice of banks and insurers refusing or limiting loans, mortgages and insurance within Black neighborhoods.

The effects were long term. As recently as 2019, formerly redlined areas had almost 30% lower homeownership rates and a $60,000 difference in median household income compared with mostly white areas that were provided with better opportunities beginning nearly a century ago.

Beyond the financial effects, research also shows that the practice of redlining in Detroit is associated with self-reported poor health, heart disease and poor vision among current residents of these areas.

Tax foreclosure leads to poor health outcomes

Discriminatory housing practices continue today, often taking the form of foreclosures and evictions.

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In the past two decades, Detroit has experienced one of the highest tax foreclosure rates in the country.

At the height of the foreclosure crisis in 2015, approximately 6,408 owner-occupied homes were repossessed by the county, displacing those Detroiters and putting them at a higher risk of poor mental health.

This has led to more sales at auction to investors and speculators, who tend to evict more tenants than other types of landlords and to allow their properties to fall into disrepair.

Eviction, poor housing quality and health

Detroit saw about 30,000 eviction filings annually before the COVID-19 pandemic.

After a few years of respite due to pandemic-era housing policies, evictions have climbed back toward prepandemic levels. In 2023, more than 20,000 Detroiters had evictions filed against them.

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Research connects eviction to a range of poor physical and mental health outcomes.

Even the Detroiters not at risk of eviction often pay increasing rental costs for poor-quality housing despite attempts by the city to implement a rental ordinance requiring landlords to register and obtain a certification of compliance with Detroit's rental ordinance.

Research shows that 9 in 10 pandemic-era eviction filings involved properties not in compliance with local health and safety codes, including those that regulate lead hazards. At the same time, much of the housing stock continues to decline as it ages and compliance efforts are not well enforced.

Some who are evicted have nowhere to go. In January 2023, 1,691 Detroiters were experiencing homelessness, increasing their risk of mental health challenges, disease and even death.

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Policies that have worked

There is some good . Tax foreclosures in Detroit have decreased significantly from the height of the tax foreclosure crisis.

We partly attributed this to the pandemic-era moratorium on tax foreclosures initiated by the Wayne County Treasurer's Office, which ended in 2023. The county also oversees the Michigan Homeowner Assistance Fund and programs such as Pay As You Stay and the Detroit Tax Relief Fund, which have helped clear tax debt for homeowners.

Programs such as Detroit's Homeowners Property Exemption program have exempted some low-income homeowners from paying property taxes in an effort to prevent tax delinquency.

However, our research shows that despite efforts to raise awareness about these programs, few qualifying households access them. This places them at risk for foreclosure and possible displacement.

New policy directions

Detroiters' resilience and persistent advocacy have led to significant wins for housing justice, helping to translate community concerns into city policy.

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In 2022, residents successfully organized for the right to counsel for qualifying low-income Detroiters facing eviction.

The city could also follow the lead of other U.S. cities such as Philadelphia by exploring eviction diversion and mediation models to reduce eviction filings.

More targeted efforts are also needed to invest in Black homeownership to ensure stability and encourage long-term residence.The Conversation

Roshanak Mehdipanah, Associate Professor in Public Health, University of Michigan; Kate Brantley, Research Area Specialist, University of Michigan, and Melika Belhaj, Research Associate, University of Michigan

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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ICE detainees suffer preventable deaths − Q&A with a medical researcher about systemic failures

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theconversation.com – Cara R. Muñoz Buchanan, Physician and Clinical Fellow in Policy and Social Emergency Medicine, Harvard Kennedy School – 2024-06-28 07:37:35
The ICE Health Service Corps suffers from outdated systems and a lack of translation services, despite a federal mandate to provide them.
ICE Health Service Corps

Cara R. Muñoz Buchanan, Harvard Kennedy School

The 2024 Homeland Security appropriations bill increased funding for U.S. Immigration and Customs Enforcement operations to handle an anticipated daily detainee population of 41,500, up from an average of 34,000 in recent years.

Yet recent studies have exposed cracks that call into question the agency's ability to medically care for the detainees it is entrusted with, including inhumane conditions, high suicide rates, structural problems such as the use of prisons to hold detainees, delayed or interrupted medical care and overcrowded conditions. Research also shows that the pandemic years further exacerbated these inequalities.

One recent report by a trio of nonprofit advocacy groups blames preventable deaths of people detained by ICE on inadequate investigations and flawed systems at the agency. The report, Deadly Failures, released on June 25, 2024, by the American Civil Liberties Union, American Oversight, and Physicians for Human Rights, documents inadequacies in diagnosis, treatment and emergency response. It points to suicides that might have been prevented with appropriate mental health care and properly managed medication. And it details underlying issues – understaffing and a lack of interpretation and translation services.

asked Cara Buchanan, an emergency physician and clinical fellow in health policy and social emergency medicine at the Harvard Kennedy School, whose research the report cites, about research in this area by her team and others, ICE's track record on detainee medical care and what needs to be done to improve medical care for people in ICE custody.

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What have you and your colleagues found in studying medical care for detainees in U.S. Immigration and Customs Enforcement custody?

Our research shows that preventable deaths of people in ICE detention are often preceded by lapses in a standardized, consistent and competent approach to medical triage, including identification and escalation of the need for emergency care.

What has other recent research uncovered in this area?

Research across many disciplines, including medicine, law, policy, criminal justice, health economics, human rights and public health, correlate structural design features of immigration detention facilities to adverse health outcomes for detainees. This includes the use of solitary confinement, which is linked to an increased risk of self-harm for detainees in ICE custody.

The COVID-19 pandemic highlighted significant health disparities in immigration detention facilities. Many facilities failed to provide adequate basic, preventive and emergency medical care.

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Studies also demonstrate a persistent lack of transparent information about conditions in ICE facilities that continues to prompt ongoing calls for increased oversight and accountability to address the systemic sources of poor health outcomes.

The ultimate failure of the immigration detention system to protect the health and safety of detainees is the outcome of preventable death. Publicly available ICE detainee death reports provide basic details about timelines preceding death. However, independent investigations and analyses into the circumstances surrounding these deaths have demonstrated pervasive and systemic negligence.

Billions of dollars of congressional appropriations continue to pour into the expansion of ICE detention facilities, and private prisons contracted to provide services for immigrants in detention report profit margins in the billions of dollars.

How did your work fit with the recently released report?

Deadly Failures expounds on our prior research with a depth and breadth of context.

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The report provides clear policy recommendations for major stakeholders – the Department of Homeland Security, the Department of Justice, Congress and local and state governments.

These recommendations range from feasible to ambitious in detailing actions that would eliminate preventable death for those in ICE custody. Proposed interventions include prompt disposition of detainees who have medical and mental health vulnerabilities, limiting the physical and fiscal expansion of detention facilities, investing in community-based services, banning solitary confinement, passing legislation to ensure accountability to standards of care in facility contracts and establishing mechanisms for regular public data reporting. The report also calls for ICE to dismantle the mass immigration detention system at large.

I was particularly heartened to read the second line of the Deadly Failures executive summary, which highlights the most striking finding of our research – the troubling trend of ICE releasing people from custody immediately prior to their deaths.

Why does this happen?

ICE regulations specify that when a detained noncitizen dies in custody, the agency will conduct timely notification, review and publication of the death. But the regulatory language about people who die immediately after release from ICE custody is vague and doesn't include a reporting timeline or proposed mechanism of accountability for such deaths.

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When we investigated the total number of deaths in ICE custody from fiscal years 2021 to 2023, our research team cross-referenced published ICE death reports with releases issued by investigative journalists and immigration advocacy groups. Our review of public records and available legal documents confirmed four deaths that were not accounted for in the 11 death reports ICE published from those years.

Through this investigation we found a pattern of detainees who, while hospitalized, were released from ICE custody after being deemed critically ill, with death clinically imminent. When we reviewed these detainees' medical records we found deaths that could have been prevented. In one such case, a detainee contracted COVID-19 while in custody and suffered a series of complications, including multiple hospitalizations for recurrent infections. Concerns raised by the facility medical director about the patient's persistently critical condition went unaddressed, and after ultimately suffering a stroke the patient was placed on life support. ICE released the unconscious patient from custody just prior to his death. This technical release from custody allowed ICE to avoid mandatory public reporting of this case and its details.

Officially, ICE has said that it is continuing to evaluate its enforcement of health standards and is looking for ways to improve medical care delivery.

Our research team's key recommendation, also highlighted by the authors of Deadly Failures, is that all deaths of individuals that occur within 30 days of release from ICE custody be included in mandatory public reporting of ICE statistics and death reports. This is a critical measure of transparency and accountability.

ICE detainees suffer preventable deaths − Q&A with a medical researcher about systemic failures
The Port Isabel ICE detention center in Los Fresnos, Texas.
Veronica Gabriela Cardenas-Pool/Getty Images

What should Immigration and Customs Enforcement be doing to prevent unnecessary deaths on its watch?

Time in ICE custody is related to preventable death. People detained in ICE facilities should be released as quickly as possible so their medical needs can be transitioned to more consistent and long-term care.

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Triage should also be standardized. Detainees who show signs and symptoms of serious medical conditions should be rapidly assessed and quickly transferred to local emergency rooms for further evaluation and treatment. Rigorous oversight and accountability should be established for all workers at ICE facilities and for clinical outcomes of detained patients.

Are you still seeking answers to questions you have about detainees? If so, what are you looking for?

ICE's collection, recording and sharing of high-quality data regarding the capacity of ICE facilities, the scope of health services available and metrics of health outcomes for people detained in ICE custody is markedly limited. The dearth of data leaves a barrage of unanswered questions regarding the conditions that contribute to poor health outcomes. In my view, ICE detention facilities should be held to standards of transparency and accountability to federal and public reporting, as are other large systems of medical care.

Is there anything that has surprised you in what you've found over the past few years?

The instances of deficient professional language services, including interpretation and translation, for people detained in ICE custody is surprising. It is at odds with a federal mandate that stipulates a patient's right to receive health information in their preferred language at no cost. This right is exercised daily in U.S. hospitals and clinics across the country for the nondetained with in-person interpreters or readily accessible technology.

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Woman in white coat examines man in orange jumpsuit
An ICE Health Service Corps photo shows a detainee in an orange jumpsuit receiving care.
ICE Health Service Corps

Ultimately, it is disheartening but not surprising that extensive research continues to demonstrate a diminished standard of care experienced by people detained in ICE custody.The Conversation

Cara R. Muñoz Buchanan, Physician and Clinical Fellow in Health Policy and Social Emergency Medicine, Harvard Kennedy School

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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