HIPAA Rights of Unaccompanied Children are at the Heart of an Immigration Debate

HIPAA Rights of Unaccompanied Children are at the Heart of an Immigration Debate

By Mary Butler

Federal immigration officials have been using mental health evaluations obtained from unaccompanied children (UACs) to support efforts to deport these minors and family members or sponsors living in the United States, which raises questions about HIPAA compliance and the providers involved in their care.

In February, the Washington Post reported on the case of one UAC, a teenaged Honduran asylum-seeker named Kevin Euceda, who underwent the mandatory therapy sessions while detained by the Office of Refugee Resettlement (ORR). Euceda and his lawyers learned that those records—which included memories of traumas and coerced criminal activities—were shared with Immigration and Customs Enforcement (ICE) without consent from him or his therapists. The Post reporting suggests this is common for UACs detained in the United States.

Maya Uppaluru—a healthcare attorney at Crowell & Moring who has analyzed the issues with sharing of mental health records of UACs—told the Journal of AHIMA that this practice could be problematic under federal privacy regulations. In her analysis, it was not clear to what extent UAC facilities operated by ORR, and their mental health employees or subcontractors, would be Covered Entities under HIPAA.

Further, the healthcare providers’ actions—sharing sensitive mental health details to support deportation proceedings—could be unacceptable from an ethical and professional conduct perspective. Uppaluru noted that psychologists and social workers both must adhere to state law and professional codes of conduct that could pertain to a client’s informed consent, as well as any sharing of information for legal or law enforcement purposes.

Legislators appear to agree. Since the Washington Post’s article published, lawmakers in the House and Senate have introduced legislation that would ban federal agencies such as Health and Human Services from sharing therapy disclosures used in detention or deportation proceedings. In a letter to ICE leaders, Senators Ron Wyden (D-OR) and Elizabeth Warren (D-MA) wrote, “Children must have the opportunity to openly share their experiences with their therapists and care providers. They must be able to do so without the fear that what they disclose will later influence their asylum applications. The practice of sharing confidential clinical notes discourages these children from confiding in their therapists and care providers to get the help they need.”

Reference

Dreier, Hannah. “Bill would end practice of using confidential therapy notes against detained immigrant children.” Washington Post. March 4, 2020. https://wapo.st/39yAB8e.

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