Assistant Attorney General Beth A. Williams Delivers Capital Conversations Speech Highlighting Department of Justice Policy Accomplishments

Remarks as Prepared for Delivery

Thank you, Dean, for inviting me.  I am honored to be here and to be part of the Capital Conversations series.

It has been a true privilege to have led the Office of Legal Policy at the Department of Justice these past three-and-half years.  For those of you who don’t know about our office, OLP is tasked with being the principal office to research, plan and develop the Department’s major policy initiatives.  This process often involves components across the Department that have special expertise in the policies being considered.  OLP coordinates that effort and advises the Attorney General and Deputy Attorney General on the path forward.

Additionally, as this audience may know, we are responsible for vetting and shepherding the President’s judicial nominations for the federal courts.

I’ve sometimes remarked that, with so much going on in our jobs and so much happening in a single day, it’s easy to lose track of time.  But over these years, there has been an incredible amount of good work that has been accomplished.  And so today, I’d like to focus on some of the good news, which I think too often goes under-reported.

Judicial confirmations. First, in the course of this period, we have confirmed 220 new Article III federal judges, including 2 on the Court of International Trade, 162 on the federal district courts, 53 on the courts of appeal, and of course three Supreme Court justices — including our newest Justice, Justice Amy Coney Barrett.  Those numbers do not even account for the many other federal judges the President has appointed to specialty courts.  This has been no easy task, and has required an incredible amount of work from the White House, my office, and of course the Senate.  But it is a credit first and foremost to those individuals who are willing to serve their country for lifetime appointments, and endure a judicial confirmation process that is incredibly taxing, both for themselves and their families.

As I have said before, the pace of nominations has not come at the expense of qualifications.  One liberal commentator has acknowledged that “Based solely on objective legal credentials, the average Trump appointee has a far more impressive resume than any past president’s nominees.”  And even though the group has been hostile and in some cases unfair to certain nominees, that same conclusion is largely reflected in ratings from the American Bar Association, which has rated President Trump’s judicial appointments as among the most qualified in recent history.  But I can tell you, having worked closely with these judges throughout the nominations process, I didn’t need the ABA’s assessment to tell me how extraordinary they are.  These confirmed judges are men and women of character and patriotism, stepping forward to choose a lifetime of service to our country.  They are some of the very best of our profession. 

And what makes them so extraordinary is neither their number nor their credentials; nor even their historically well-qualified ratings.  What makes them extraordinary is the principles they share.   

These judges come from all across the country, from many ethnic backgrounds and all walks of life.  Before becoming judges, they were prosecutors and professors, immigrants and trailblazers, veterans and public servants.  But what they share in common — the principle that binds them — is the unwavering commitment to exercise neither force nor will, but only judgment.  By binding themselves to the Constitution, these judges will help ensure that our judiciary is the least dangerous branch, as Hamilton expected.

I know that many people have been uplifted by the confirmation hearings for now-Justice Barrett.  Those who watched the hearings saw two things: first, a woman of incredible integrity and intelligence who is enormously well-qualified for the position to which she had been nominated.  Few could deny that if Justice Barrett’s nomination had occurred in 1986 or 1993, her confirmation would be unanimous, or near-so.

Second, the American people saw, over four days of confirmation hearings, a debate in the spirit of the best traditions of this Society.  They saw some Senators affirm that it is the duty of the judiciary to say what the law is, not what it should be.  They heard Justice Barrett say, repeatedly, that she would put any personal views aside and judge according to the law.   And they heard her say that she would approach each case with an open mind, that she harbors no agenda or hostility.

On the other side, the argument was made clearly that there is little difference between law and policy — that preferred policy outcomes should play a paramount role in deciding cases.  And it was suggested, in a profoundly pessimistic view of a judge’s role, that it is a fallacy to believe that any judge can rule without his or her personal views factoring in.

There could hardly be a starker debate.  But what this should reaffirm for everyone listening is that when there is free speech, open debate, and fair time accorded for real discussion, the American people will be able to make up their own minds.  Ideas matter.   Those who are confident in the strength of their arguments, who have the courage of their convictions, do not shy away from free speech, and they do not try to silence opposing views.

***

While judicial nominations have certainly taken a good deal of our attention, I’d also like to talk for a moment about some crucial policy achievements that we have secured.

Regulatory Reform.  First, under the leadership of Attorney General William Barr, Deputy Attorney General Rosen, and before them, Attorney General Sessions and Deputy Attorney General Rosenstein, the Department has taken significant steps to improve the regulatory process, making it more lawful, more accountable, and more transparent.

We started by stating unequivocally that guidance documents are just that — guidance — and do not have the force of law.  The Department of Justice no longer writes letters or issues guidance documents that purport to create rights or obligations binding on persons or entities outside the Executive Branch.

Next, under the Brand memo, issued by then-Associate Attorney General Rachel Brand, the Department made clear that it will not use its enforcement authority to effectively convert agency guidance documents into binding rules.  And Department litigators may not use noncompliance with guidance documents as a basis for proving violations of law in affirmative civil enforcement actions.

The principles underlying these actions served as the basis for government-wide reform, as reflected in Executive Orders 13891 and 13892.  And I am happy to report that they are no longer just memos; they are now Department of Justice regulations, ensuring that the principles of lawful regulation — regulation that accords with the Administrative Procedures Act — are carried forward.

Because insight into agency thinking should not be limited to the well-connected or only to those who can afford Washington lawyers, our new regulations also required the posting of every guidance document on the Department’s public Guidance Portal.  If a guidance document is not posted on the portal, the Department will not be able to claim judicial deference to interpretations contained in that document.

What does this mean for the American people?  A more lawful regulatory process, an agency that abides by its rules, and a process where the public has input into the regulations that govern them.

Good Government.  In a similar effort toward more honest, transparent government practices, the Department has ended the practice of pay-outs to third-party groups as part of government settlements.  As Attorney General Sessions said at the time, “When the federal government settles a case against a corporate wrongdoer, any settlement funds should go first to the victims and then to the American people.”  Third-party organizations who are neither victims nor parties to the lawsuit are not entitled to compensation as a result of government action.  This is a basic principle of responsible government litigation.

In another step for good government, we have worked to shed light on the serious legal deficiencies of unlawful nationwide injunctions.  It has been the legal position of the Department across administrations to oppose such injunctions.  But their increasing number — issued by districts coast to coast — has reached a crescendo over the last few years.  The separation of powers imbalance they engender is real.  In September 2018, the Attorney General issued a memorandum with litigation guidelines for handling these cases when plaintiffs seek this broad relief.  There are signs that these efforts are finally having results, with some appellate courts limiting their scope.  But it is unlikely the issue will be fully resolved until it finally percolates up to the Supreme Court for resolution.

Religious Liberty.  The Department has also taken important steps to protect religious liberty.  In 2017, Attorney General Sessions acted pursuant to an Executive Order by President Trump to issue guidance interpreting religious liberty protections in Federal law in order to guide agencies in complying with that law.  The guidance interprets existing protections for religious liberty, identifying twenty high-level principles that administrative agencies and executive departments can put to practical use to ensure the religious freedoms of Americans are lawfully protected.  I’ve been pleased to serve as the co-vice chair of the Religious Liberty Task Force, which assists in coordinating the Department’s implementation of the Attorney General’s Religious Liberty Memo.

The Supreme Court has been very clear, first in the Trinity Lutheran case, and more recently in Espinoza v. Montana Department of Revenue, that the Free Exercise Clause “protects religious observers against unequal treatment” and against “laws that impose special disabilities on the basis of religious status.”  To put it succinctly, while governments may limit funding for religious use, they may not limit funding to religious people.  We have worked to make sure that the Government’s policies reflect that basic principle.   Early this year, the Department and eight other agencies proposed rules that would ensure equal treatment for faith-based organizations that participate in federal programs.  Once final, the rules will significantly enhance the ability of Faith Based Organizations to participate in government programs without sacrificing their religious identity or mission.

OLP also worked closely with the Office of Justice Programs and other Department components to issue guidance this past July to make clear that recipients of Department of Justice grant funding would not be discriminated against on the basis of their faith.  The guidance is an important affirmation of the Department’s commitment to ensure that individuals and organizations driven by faith to serve the community are not subject to unequal treatment by virtue of their religious identity.  In tandem with this guidance, the Office of Justice Programs launched a new web portal to receive reports of possible violations of grantees’ and beneficiaries’ civil liberties. 

And we have been leading the charge in the fight to combat anti-Semitism.  After the troubling rise in crimes against Jewish communities and synagogues, Attorney General Barr personally visited Brooklyn to meet with leaders of the Jewish community there and issued a directive to all United States Attorneys to initiate or reinvigorate contacts with the Jewish community in their respective districts to reassure them of the Department of Justice’s commitment to protecting Jewish citizens.  During the spring of 2020, United States Attorneys across the country met with Jewish clergy, local non-profits, and branches of national Jewish organizations.  Since January 2017, the Department has charged more than 80 defendants with anti-Semitic hate crimes and related conduct, and has obtained convictions of more than 65 defendants for the same.

Through this and other work, the Department is protecting Americans from discrimination and ensuring that they enjoy the religious freedoms that federal law guarantees to them.

Cybersecurity.   With regard to cyber issues, the Department’s Cyber-Digital Task Force has produced some excellent and important work.  The initial Task Force Report issued in July 2018 addressed many crucial aspects of the Department’s response to malicious, cyber-enabled threats.  One central focus was the response to the threat posed by foreign operations that seek to divide our society or undermine our democratic institutions.

The Report also sets out important steps the Department has taken and will continue to take to protect the integrity of our elections by working with other executive departments to identify and share threats and vulnerabilities with local election officials, political organizations, and other potential targets to help them detect and thwart attacks.

Earlier this month, the Cyber-Digital Task Force released a white paper on cryptocurrency.  OLP was privileged to coordinate the drafting and development of this ambitious framework, which sets out how cryptocurrency technology is used and how criminals misuse it to harm users, exchanges, and investors, as well as to facilitate a broad range of crimes from child exploitation to terrorism.  The framework identified the partners and resources we use to combat growing criminal and national security threats involving cryptocurrency, and identified ways to address these threats.

Vulnerable Victims.  Finally, there is no more important role for law enforcement than protecting our most vulnerable members of society.  That’s why the Department has made it a priority to protect children from online exploitation, to seek justice for victims of human trafficking, and to combat elder fraud and abuse.   Attorney General Barr issued a directive to all federal prosecutors to continue to use their strongest efforts to identify and prosecute individuals involved in sex trafficking, including — importantly — those who fuel the demand for trafficking and ensure that victims receive restitution for the harms they suffered.

Recently, we also published proposed regulations providing a clear and comprehensive statement of sex offenders’ registration obligations under the federal Sex Offender Registration and Notification Act. These regulations will better protect the public by enhancing the enforcement of registration and notification across the country and ensuring that information about sex offenders in the community is available to law enforcement.

And, with regard to elder justice, the Department recently conducted the single largest coordinated sweep of elder fraud cases in history, with over 400 defendants charged for causing more than $1 billion in losses.   It also launched the National Nursing Home Initiative, designed to investigate and prosecute nursing homes that provide grossly substandard care to their residents.

***

As you can see, there has been a lot of good work and good news to report over the past three-and-a-half years, and I have touched on only some of it.  I appreciate the opportunity to share it with you today.   So with that, let me pause.  And I am happy to take questions.

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    The Navy's four shipyards completed 38 of 51 (75 percent) maintenance periods late for aircraft carriers and submarines with planned completion dates in fiscal years 2015 through 2019, for a combined total of 7,424 days of maintenance delay. For each maintenance period completed late, the shipyards averaged 113 days late for aircraft carriers and 225 days late for submarines. Maintenance Delays at Navy Shipyards for Fiscal Years 2015 through 2019 Unplanned work and workforce factors—such as shipyard workforce performance and capacity (having enough people to perform the work)—were the main factors GAO identified as causing maintenance delays for aircraft carriers and submarines. The Navy frequently cited both factors as contributing to the same days of maintenance delay. Unplanned work—work identified after finalizing maintenance plans—contributed to more than 4,100 days of maintenance delays. Unplanned work also contributed to the Navy's 36 percent underestimation of the personnel resources necessary to perform maintenance. The workforce factor contributed to more than 4,000 days of maintenance delay on aircraft carriers and submarines during fiscal years 2015 through 2019. The Navy has taken steps but has not fully addressed the unplanned work and workforce factors causing the most maintenance delays. First, the Navy updated planning documents to improve estimates and plans to annually update these data, but knowing whether changes improve results may take several years. Second, the Navy has consistently relied on high levels of overtime to carry out planned work. GAO's analysis found that high overtime among certain production shops, such as painting or welding, averaged from 25 to 32 percent for fiscal years 2015 through 2019, with peak overtime as high as 45 percent. Furthermore, shipyard officials told us that production shops at all four shipyards are working beyond their capacity. Overtime at such rates has been noted as resulting in diminished productivity. Third, the Navy initiated the Shipyard Performance to Plan initiative in the fall of 2018 to address the unplanned work and workforce factors, but it has not yet developed 13 of 25 planned metrics that could improve the Navy's understanding of the causes of maintenance delays. In addition, the Shipyard Performance to Plan initiative does not include goals, milestones, and a monitoring process along with fully developed metrics to address unplanned work and workforce weaknesses. Without fully developing metrics and implementing goals, action plans, milestones, and a monitoring process, the shipyards are not likely to address unplanned work and workforce weaknesses and the Navy is likely to continue facing maintenance delays and reduced time for training and operations with its aircraft carriers and submarines. For fiscal years 2015 through 2019, the Navy spent $2.8 billion in capital investments to address shipyard performance, among other things. However, the shipyards continue to face persistent and substantial maintenance delays that hinder the readiness of aircraft carriers and submarines. The Senate Armed Services Committee, in a report accompanying a bill for the National Defense Authorization Act for Fiscal Year 2019, included a provision for GAO to review Navy shipyards' performance. GAO evaluated the extent to which the Navy (1) completed maintenance at its shipyards on time on aircraft carriers and submarines in fiscal years 2015 through 2019, (2) has identified the main factors leading to maintenance delays, and (3) has addressed the main factors affecting any delays in that maintenance. GAO reviewed data related to Navy shipyard maintenance for fiscal years 2015 through 2019, analyzed factors contributing to delays and plans to address them, visited all four Navy shipyards, and met with Navy and shipyard officials. GAO is making three recommendations to the Navy, including updating workforce planning requirements to avoid the consistent use of overtime; completing the development of shipyard performance metrics; and developing and implementing goals, action plans, milestones, and monitoring results. The Navy concurred with all three recommendations. For more information, contact Diana Maurer, (202) 512-9627, MaurerD@gao.gov, or Asif A. Khan, (202) 512-9869, KhanA@gao.gov. 
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    A federal grand jury returned an indictment today charging Lucia Andrea Gatta, a former resident of Palm Beach County, Florida, with tax evasion and failing to file Reports of Foreign Bank and Financial Accounts (FBARs), among other offenses, announced Acting Deputy Assistant Attorney General Stuart M. Goldberg of the Justice Department’s Tax Division and U.S. Attorney Ariana Fajardo Orshan for the Southern District of Florida.
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  • VA Vet Centers: Evaluations Needed of Expectations for Counselor Productivity and Centers’ Staffing
    In U.S GAO News
    The Veterans Health Administration's (VHA) Readjustment Counseling Service (RCS) provides counseling through 300 Vet Centers, which can be found in community settings and are separate from other VHA facilities. RCS has set expectations for counselor productivity at Vet Centers. For example, one expectation is for counselors to achieve an average of 1.5 visits for each hour they provide direct services. However, RCS officials told GAO that they have not conducted, and do not have plans to conduct, an evaluation of the expectations. VA Vet Center Productivity Expectations for Counselors Although most counselors met the productivity expectations in fiscal year 2019, counselors GAO spoke with said the expectations led them to change work practices in ways that could negatively affect client care. For example, counselors at one Vet Center told GAO that, to meet productivity expectations, they spend less time with each client to fit more clients into their schedules. Without an evaluation of its productivity expectations, RCS lacks reasonable assurance that it is identifying any unintended or potentially negative effects of the expectations on counselor practices and client care. RCS officials told GAO that by the start of fiscal year 2021 they plan to implement a staffing model to identify criteria for determining staffing needs at Vet Centers. The model incorporates data on counselors' productivity (work hours and number of visits), and total clients to determine criteria for adding or removing a counselor position from a Vet Center. However, the model does not fully address key practices in staffing model design GAO identified in previous work. For example, the model does not include the input of Vet Center counselors, or client data associated with directors, who also provide counseling. As a result, RCS is at risk of making decisions about Vet Center staffing that may not be responsive to changing client needs. Shortages of mental health staff within VHA coupled with the increasing veteran demand for mental health services highlight the critical importance of ensuring appropriate Vet Center staffing. VHA's RCS provided counseling (individual, group, marriage, and family) and outreach services through Vet Centers to more than 300,000 veterans and their families in fiscal year 2019. In 2017, RCS implemented changes to expectations that it uses to assess Vet Center counselor productivity, setting expectations for counselors' percentage of time with clients and number of client visits. GAO was asked to review Vet Center productivity expectations for counselors and staffing. Among other issues, this report examines the extent to which VHA (1) evaluates its productivity expectations; and (2) assesses Vet Centers' staffing needs. To do this work, GAO reviewed RCS documentation regarding counselors' productivity expectations and analyzed RCS data on counselor productivity expectations and staffing, for fiscal year 2019. GAO interviewed RCS leadership, including district directors, and directors and counselors from 12 Vet Centers, selected for variation in geographic location and total number of clients, among other factors. GAO is making four recommendations, including that VHA (1) evaluate Vet Center productivity expectations for counselors; and (2) develop and implement a staffing model that incorporates key practices. The Department of Veterans Affairs concurred with GAO's recommendations and identified actions VHA is taking to implement them. For more information, contact Debra A. Draper at (202) 512-7114 or draperd@gao.gov.
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  • Medicaid Information Technology: Effective CMS Oversight and States’ Sharing of Claims Processing and Information Retrieval Systems Can Reduce Costs
    In U.S GAO News
    The Centers for Medicare and Medicaid Services (CMS) has reimbursed billions of dollars to states for the development, operation, and maintenance of claims processing and information retrieval systems—the Medicaid Management Information Systems (MMIS) and Eligibility and Enrollment (E&E) systems. Specifically, from fiscal year 2008 through fiscal year 2018, states spent a total of $44.1 billion on their MMIS and E&E systems. CMS reimbursed the states $34.3 billion of that total amount (see figure). Money Spent by States and Reimbursed by CMS from 2008–2018 for Medicaid Management Information Systems (MMIS) and Eligibility and Enrollment (E&E) Systems For fiscal years 2016 through 2018, CMS approved 93 percent and disapproved 0.4 percent of MMIS funding requests, while for E&E it approved 81 percent and disapproved 1 percent of the requests. The remaining 6.6 percent of MMIS requests and 18 percent of E&E requests were either withdrawn by states or were pending. GAO estimates that CMS had some level of supporting evidence of its review for about 74 percent of MMIS requests and about 99 percent of E&E requests. However, GAO estimates that about 100 percent of E&E requests and 68 percent of MMIS requests lacked pertinent information that would be essential for indicating that a complete review had been performed. Among CMS requirements for system implementation funding is that states submit an alternatives analysis, feasibility study, and cost benefit analysis. However, GAO found that about 45 percent of such requests it sampled for fiscal years 2016 through 2018 did not include these required documents. The above weaknesses were due, in part, to a lack of formal, documented procedures for reviewing state funding requests. CMS also lacked a risk-based process for overseeing systems after federal funds were provided. CMS provided helpful comments and recommendations to states in selected cases, but in other instances it did not. In two states that had contractors struggling to deliver successful projects, state officials said they had not received recommendations or technical assistance from CMS. The states eventually terminated the projects after spending a combined $38.5 million in federal funds. According to CMS officials, they rely largely on states to oversee systems projects. This perspective is consistent with a 2018 Office of Management and Budget (OMB) decision that federal information technology (IT) grants totaling about $9 billion annually would no longer be tracked on OMB's public web site on IT investment performance. Accordingly, the CMS and Health and Human Services chief information officers (CIO) are not involved in overseeing MMIS or E&E projects. Similarly, 21 of 47 states responding to GAO's survey reported that their state CIO had little or no involvement in overseeing their MMISs. Such non-involvement of officials with duties that should be heavily focused on successful acquisition and operation of IT projects could be hindering states' ability to effectively implement systems. To improve oversight, CMS has begun a new outcome-based initiative that focuses the agency's review of state funding requests on the successful achievement of business outcomes. However, as of February 2020, CMS had not yet established a timeline for including MMIS and E&E systems in the new outcome-based process. CMS had various initiatives aimed at reducing duplication of Medicaid systems (see table). Description and Status of Centers for Medicare and Medicaid Services Initiatives Aimed at Reducing Duplication by Sharing, Leveraging, and Reusing Medicaid Information Technology Initiative Description Implementation status Number of surveyed states reporting use of the initiative Reuse Repository Used by states to collect and share reusable artifacts. Made available in August 2017. As of January 2020, CMS was no longer supporting this initiative. 25 of the 50 reporting states Poplin Project Was to provide free, open-source application program interfaces for states to use in developing their modular Medicaid systems. Initiative never fully implemented. As of January 2020, CMS was no longer supporting this initiative. Three of the 50 reporting states Open Source Provider Screening Module Open-source module for states to use at no charge. Made available in August 2018. As of January 2020, CMS was no longer supporting this initiative. One of the 50 states reported attempting to use the module. Medicaid Enterprise Cohort Meetings A forum where states can discuss sharing, leveraging, and/or reuse of Medicaid technologies. As of January 2020, Cohort meetings were being held on a monthly basis. 47 of the 50 states reported participating in the meetings. Source: GAO analysis of agency data. | GAO-20-179 However, as of January 2020, the agency was no longer supporting most of these initiatives because they failed to produce the desired results. CMS regulations and GAO's prior work have highlighted the importance of reducing duplication by sharing and reusing Medicaid IT. To illustrate the potential for reducing duplication, 53 percent of state Medicaid officials responding to our survey reported using the same contractor to develop their MMIS. Nevertheless, selected states are taking the initiative to share systems or modules. Further support by CMS could result in additional sharing initiatives and potential cost savings. The Medicaid program is the largest source of health care funding for America's most at-risk populations and is funded jointly by states and the federal government. GAO was asked to assess CMS's oversight of federal expenditures for MMIS and E&E systems used for Medicaid. This report examines (1) the amount of federal funds that CMS has provided to state Medicaid programs to support MMIS and E&E systems, (2) the extent to which CMS reviews and approves states' funding requests for the systems and oversees the use of these funds, and (3) CMS's and states' efforts to reduce potential duplication of Medicaid IT systems. GAO assessed information related to MMIS and E&E systems, such as state expenditure data, federal regulations, and CMS guidance to the states for submitting funding requests, states' system funding requests, and IT project management documents. GAO also evaluated a generalizable sample of approved state funding requests from fiscal years 2016 through 2018 to analyze, among other things, CMS's review and approval process and conducted interviews with agency and state Medicaid officials. GAO also reviewed relevant regulations and guidance on promoting, sharing, and reusing MMIS and E&E technologies; and surveyed 50 states and six territories (hereafter referred to as states) regarding the MMIS and E&E systems, and assessed the complete or partial responses received from 50 states. GAO is making nine recommendations to improve CMS's processes for approving and overseeing the federal funds for MMIS and E&E systems and for bolstering efforts to reduce potential duplication. Among these recommendations are that CMS should develop formal, documented procedures that include specific steps to be taken in the advanced planning document review process and instructions on how CMS will document the reviews; develop, in consultation with the HHS and CMS CIOs, a documented, comprehensive, and risk-based process for how CMS will select IT projects for technical assistance and provide recommendations to assist states that is aimed at improving the performance of the systems; encourage state Medicaid program officials to consider involving state CIOs in overseeing Medicaid IT projects; establish a timeline for implementing the outcome-based certification process for MMIS and E&E systems; and identify, prior to approving funding for systems, similar projects that other states are pursuing so that opportunities to share, leverage, or reuse systems or system modules are considered. In written comments on a draft of this report, the department concurred with eight of the nine recommendations, and described steps it had taken and/or planned to take to address them. The department did not state whether it concurred with GAO's recommendation to encourage state officials to consider involving state CIOs in Medicaid IT projects. HHS stated that it was unable to discern evidence as to whether a certain structure contributed to a specific outcome. GAO believes, consistent with federal law, that CIOs are critically important to the success of IT projects. For more information, contact Vijay D’Souza at (202) 512-6240 or dsouzav@gao.gov.
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  • Aviation Sanitation: FDA Could Better Communicate with Airlines to Encourage Voluntary Construction Inspections of Aircraft Galleys and Lavatories
    In U.S GAO News
    Most commercial aircraft undergo voluntary inspections to ensure that galleys and lavatories are constructed and assembled to meet the Food and Drug Administration's (FDA) sanitation standards, according to industry representatives. Twenty-seven percent of the inspections FDA conducted between fiscal years 2015 and 2019 found objectionable conditions. But in nearly all of these instances, the conditions identified, such as the need for additional sealant in areas where there was a gap or seam, were corrected by the airline or aircraft manufacturer during the inspection. However, some regional airline representatives told GAO that their aircraft do not receive these construction inspections, either because larger airlines with which they have contracts told them the inspections were unnecessary or because they did not believe the inspections were relevant to them. FDA provides these inspections free of charge, upon request of aircraft manufacturers or airlines, and aircraft passing inspection receive a certificate of sanitary construction. Representatives of one aircraft manufacturer said they view the certificate as beneficial because their customers see it as a guarantee that the aircraft was constructed in a way that decreases the likelihood of microbial contamination, pests, and insects. While the construction inspections are important, they are not required, and FDA does not proactively encourage airlines to request them. By developing a process for communicating directly to all U.S.-based commercial airlines, including regional airlines, to encourage them to receive construction inspections, FDA could better ensure that aircraft meet FDA sanitation standards to protect passenger health. An Airline Representative Applying Additional Sealant in Response to an FDA Inspection FDA faces several challenges in providing construction inspections and is taking steps to address these challenges. For example, the demand for inspections by manufacturers and airlines is unpredictable, and FDA inspectors are responsible for inspections at multiple locations. To help mitigate these challenges, officials we interviewed from four FDA field offices said they usually request advance notice from industry to allow the agency time to allocate the necessary resources for construction inspections. Voluntary construction inspections are the primary mechanism by which FDA oversees compliance with its required sanitation standards for the construction of aircraft galleys and lavatories. A report accompanying the House 2019 Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations bill included a provision for GAO to review FDA's process for ensuring proper sanitation in aircraft galleys and lavatories. This report (1) examines the extent to which aircraft are inspected to ensure compliance with FDA's sanitation standards, and (2) discusses challenges FDA faces in providing aircraft inspections and how FDA is addressing such challenges. GAO reviewed FDA guidance, interviewed FDA officials in headquarters and four selected field offices with high volumes of construction inspections, conducted site visits to meet with FDA inspectors, and interviewed representatives of selected aircraft manufacturers and airlines. GAO recommends that FDA develop a process for communicating directly with all U.S.-based commercial airlines to encourage them to request construction inspections. FDA generally agreed with our recommendation. For more information, contact Steve Morris (202) 512-3841 MorrisS@gao.gov.
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    The ambient air quality monitoring system is a national asset that provides standardized information for implementing the Clean Air Act and protecting public health. The Environmental Protection Agency (EPA) and state and local agencies cooperatively manage the system, with each playing different roles in design, operation, oversight, and funding. For example, EPA establishes minimum requirements for the system, and state and local agencies operate the monitors and report data to EPA. Officials from EPA and selected state and local agencies identified challenges related to sustaining the monitoring system. For example, they said that infrastructure is aging while annual EPA funding for state and local air quality management grants, which cover monitoring, has decreased by about 20 percent since 2004 after adjusting for inflation (see fig.). GAO found inconsistencies in how EPA regions have addressed these challenges. GAO's prior work has identified key characteristics of asset management, such as identifying needed resources and using quality data to manage infrastructure risks, which can help organizations optimize limited resources. By developing an asset management framework that includes such characteristics, EPA could better target limited resources toward the highest priorities for consistently sustaining the system. Annual Inflation-Adjusted EPA Funding for State and Local Air Quality Management Grants Air quality managers, researchers, and the public need additional information so they can better understand and address the health risks from air pollution, according to GAO's review of literature and interviews GAO conducted. These needs include additional information on (1) air toxics to understand health risks in key locations such as near industrial facilities; and (2) how to use low-cost sensors to provide real-time, local-scale air quality information. EPA and state and local agencies face persistent challenges meeting such air quality information needs, including challenges in understanding the performance of low-cost sensors. GAO illustrated this challenge by collecting air quality data from low-cost sensors and finding variability in their performance. EPA has strategies aimed at better meeting the additional air quality information needs of managers, researchers, and the public, but the strategies are outdated and incomplete. For example, they do not clearly define roles for meeting additional information needs. GAO's prior work on asset management suggests that a more strategic approach could help EPA modernize the system to better meet the additional information needs. By developing a modernization plan that aligns with leading practices for strategic planning and risk management, such as establishing modernization goals and roles, EPA could better ensure that the system meets the additional information needs of air quality managers, researchers, and the public and is positioned to protect public health. The national ambient air quality monitoring system shows that the United States has made progress in reducing air pollution but that risks to public health and the environment continue in certain locations. The system consists of sites that measure air pollution levels around fixed locations across the country using specific methods. Since the system began in the 1970s, air quality concerns have changed—such as increased concern about the health effects of air toxics. GAO was asked to evaluate the national air quality monitoring system. This report examines the role of the system and how it is managed, challenges in managing the system and actions to address them, and needs for additional air quality information and actions to address challenges in meeting those needs. GAO reviewed literature, laws, and agency documents; conducted a demonstration of low-cost sensors; and interviewed EPA officials, selected state and local officials, representatives from air quality associations, and stakeholders. GAO is making two recommendations for EPA to (1) establish an asset management framework for the monitoring system that includes key characteristics and (2) develop an air quality monitoring modernization plan that aligns with leading practices. In written comments on the report, EPA generally agreed with the recommendations. For more information, contact J. Alfredo Gómez at (202) 512-3841 or gomezj@gao.gov.
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    This 2020 Census was taken under extraordinary circumstances. In response to the Coronavirus Disease 2019 (COVID-19) pandemic and related executive branch decisions, the Bureau made a series of late changes to the design of the census. The report GAO is releasing today discusses a number of concerns regarding how late changes to the census design could affect data quality. The Bureau has numerous planned assessments and evaluations of operations which, in conjunction with its post-enumeration survey (PES)—a survey conducted independently of each census to determine how many people were missed or counted more than once—help determine the overall quality of the census and document lessons for future censuses. As the 2020 Census continues, GAO will continue to monitor the Bureau's response processing operations. GAO was asked to testify on the Census Bureau's progress to deliver apportionment counts for the 2020 Decennial Census. This testimony summarizes information contained in GAO's December 2020 report, entitled 2020 Census: Census Bureau Needs to Assess Data Quality Concerns Stemming from Recent Design Changes and discusses key quality indicators the Bureau can share, as it releases apportionment counts and redistricting data. These key indicators discussed are consistent with those recommended by the American Statistical Association and Census Scientific Advisory Committee for the Bureau. In the accompanying report being issued today, GAO is recommending that the Bureau update and implement its assessments to address data quality concerns identified in this report, as well as any operational benefits. In its comments, the Department of Commerce agreed with GAO's findings and recommendation. For more information, contact J. Christopher Mihm at (202) 512-6806 or mihmj@gao.gov.
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  • Medicaid Program Integrity: Action Needed to Ensure CMS Completes Financial Management Reviews in a Timely Manner
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    Since fiscal year 2016, the Centers for Medicare & Medicaid Services (CMS) has initiated 49 financial management reviews (FMR) to examine state Medicaid agencies' compliance with a variety of federal policies. These 49 FMRs frequently found one or more instances of states' non-compliance. CMS identified instances of non-compliance that had a financial impact totaling about $358 million. CMS identified internal control weaknesses and directed states to make changes to their Medicaid policies. However, FMRs have not always examined topics or states that reflect the areas of highest expenditures. In 2018, GAO recommended that CMS improve its targeting of oversight resources. CMS agreed with this recommendation, but has not yet implemented it. In addition, CMS guidance generally expects draft FMR reports to be completed in the year they began. However, two-thirds of FMRs (26 of 39) initiated in fiscal years 2016 to 2019 were still under review in June 2020, which can delay state actions to address program vulnerabilities. CMS officials said that at least five states would not take actions—such as returning federal funds for unallowable expenditures—until they received a complete report. Status of Financial Management Reviews (FMR) Initiated in Fiscal Years 2016 to 2019, as of June 2020 CMS officials cited competing priorities, decreased staff, and the agency's review process—which involves multiple steps and levels of review—as factors affecting their use of FMRs for oversight. CMS took steps during the course of GAO's review to complete FMRs that had been under review for several years. The agency has not established time frames for the completion of individual review steps or for its overall review of FMR reports. Developing and implementing such time frames would provide a tool to help monitor CMS's progress in completing FMRs and ensure prompt action on FMR findings. Over the last two decades, Medicaid—a joint, federal-state health care financing program for low-income and medically needy individuals—more than tripled in expenditures and doubled in enrollment. CMS estimates the program will continue to grow, exceeding $1 trillion in expenditures and 81 million enrollees in 2028. The size and growth of Medicaid present oversight challenges. CMS is responsible for assuring that states' Medicaid expenditures comply with federal requirements, and FMRs are one of its financial oversight tools. CMS generally directs its regional offices to conduct one focused FMR each year on an area of high risk within their regions, typically within one state. GAO was asked to examine CMS's use of FMRs. In this report, GAO examines the extent to which CMS has used FMRs to oversee state Medicaid programs. GAO reviewed CMS documentation on FMR findings and their status, and resources assigned to FMRs and other financial review functions. GAO also interviewed CMS officials from all 10 regional offices and the central office, and assessed CMS's FMR policies and procedures against federal internal control standards. CMS should develop and implement time frames to ensure the timely completion of FMRs. The Department of Health and Human Services concurred with our recommendation. For more information, contact Carolyn L. Yocom at (202) 512-7114 or yocomc@gao.gov.
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