Feinstein, Durbin, Murray Call for Investigation on Use of Confidential Therapy Sessions to Deport Children

Washington–Senators Dianne Feinstein (D-Calif.), Dick Durbin (D-Ill.)Patty Murray (D-Wash.) and a group of their Senate colleagues today pressed the Department of Health and Human Services and Department of Homeland Security inspectors general o review the HHS Office of Refugee Resettlement’s reported disclosure of confidential information from children’s therapy sessions to Immigration and Customs Enforcement for use in efforts to deport these children, as well as allegations that unaccompanied children are being inappropriately placed in secure ORR facilities.  The American Psychological Association’s president has condemned this “weaponizing” of therapy sessions.

“Federal agencies must treat children in their care with humanity and in accordance with the law.  Unfortunately, as your offices have repeatedly documented, agency decisions and practices have failed migrant children, including children ripped apart from their parents at the border due to the cruel family separation policy and children who have languished in dangerous, overcrowded facilities at the southwest border,” the senators wrote. “We therefore request that you closely examine the actions taken by HHS and DHS regarding the two issues we have highlighted.”  

In addition to Feinstein, Durbin and Murray, the letter was also signed by Senators Patrick Leahy (D-Vt.), Sheldon Whitehouse (D-R.I.), Amy Klobuchar (D-Minn.), Richard Blumenthal (D-Conn.), Mazie Hirono (D-Hawaii), Cory Booker (D-N.J.), Kamala Harris (D-Calif.), Ron Wyden (D-Ore.), Jack Reed (D-R.I.), Bob Menendez (D-N.J.), Bob Casey (D-Pa.), Tom Udall (D-N.M.), Tim Kaine (D-Va.), Elizabeth Warren (D-Mass.), Ed Markey (D-Mass.), Tammy Duckworth (D-Ill.), Catherine Cortez Masto (D-Nev.), Tina Smith (D-Minn.), Jacky Rosen (D-Nev.) and Sherrod Brown (D-Ohio).

Full text of the letter is available here and below:

March 4, 2020

Dear Principal Deputy Inspector General Grimm and Inspector General Cuffari:

We respectfully request that you investigate two specific issues as part of your ongoing review of U.S. Department of Health and Human Services (HHS) Office of Refugee Resettlement (ORR) and U.S. Department of Homeland Security (DHS) programs and policies for the care and custody of unaccompanied children. 

First, we ask that you review to what extent ORR has shared confidential and/or privileged information about children with U.S. Immigration and Customs Enforcement (ICE) and whether that information was inappropriately used by ICE in their efforts to deport those children.  It has recently come to light that ICE attorneys used information revealed by children to their therapists as they sought to remove those children from the United States.  We have serious concerns about whether use of information shared between children and their therapists comports with internal policy, ethics requirements, and professional norms. 

The American Psychological Association’s president strongly criticized the “weaponizing” of therapy sessions, stating, “ORR’s sharing of confidential therapy notes of traumatized children destroys the bond of trust between patient and therapist that is vital to helping the patient.”   The United States Supreme Court has recognized the psychotherapist-patient privilege, holding that conversations and notes taken during counseling sessions are protected from compelled disclosure.   The Court noted that “[e]ffective psychotherapy . . . depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears.”  The reported breach of confidentiality as it relates to traumatized children is particularly egregious. 

At a recent Senate Appropriations Committee hearing, Senators Murray and Durbin asked HHS Secretary Alex Azar about this and related issues involving HHS’s treatment of migrant children in the agency’s care.   Senator Murray asked Secretary Azar whether HHS is now making clear that anything children share in therapy sessions will be shared with ICE, to which he responded, “Those notes from therapists or mental health counselors should not be disclosed absent the child’s consent or limited, the most limited information possible, in the event of a threat to themselves or others that’s disclosed.”  Senator Durbin asked Secretary Azar how a child could consent to such disclosure, to which he responded, “Our children have legal counsel that we pay for and so we would be working with them on that.”  Secretary Azar concluded by stating that “the most important issue is this was a mistake, it should not have been happening, as it was identified it was stopped, we do respect the privacy of these mental health conversations … it was a mistake, we fixed it, and on a going forward basis it shouldn’t be happening.”  However, the agency’s own rules, which were revised in 2018, appear to require reporting to ICE of criminal history and other “Significant Incidents,” and may suggest broader discretion than suggested by Secretary Azar about the scope and ongoing nature of therapy disclosures.  

Second, we ask that you review whether unaccompanied children are being inappropriately placed in secure facilities and whether all placements of children in secure facilities are being regularly reviewed to determine whether they are justified.  The Trafficking Victims Protection Reauthorization Act (TVPRA) specifies that an unaccompanied child in ORR custody must be “promptly placed in the least restrictive setting that is in the best interest of the child,” and requires that before placement in a secure facility, a determination must be made that the child either poses a danger to self or others or has been charged with a criminal offense.  Furthermore, the TVPRA requires that the placement of a child in a secure facility must be regularly reviewed, at a minimum on a monthly basis.

A report by the National Center for Youth Law found children are “stepped-up [to secure facilities] due to allegations by staff or clinicians that may be arbitrary and unfounded.”   Children with disabilities are particularly targeted for placement in secure facilities.   A 2017 federal court order detailed the cases of multiple children who had been released from ORR custody and then subsequently arrested by ICE and placed in ORR secure facilities.  These children were only released after the court ruled that it was unlawful for the government to continue to detain them without prompt hearings before an immigration judge.   These are not isolated cases; according to a recent investigative report, a therapy service provider at a secure facility contracted by ORR personally observed “a “fear-based” push to keep children detained on shaky allegations of dangerousness.”  

Federal agencies must treat children in their care with humanity and in accordance with the law.  Unfortunately, as your offices have repeatedly documented, agency decisions and practices have failed migrant children, including children ripped apart from their parents at the border due to the cruel family separation policy and children who have languished in dangerous, overcrowded facilities at the southwest border.  We therefore request that you closely examine the actions taken by HHS and DHS regarding the two issues we have highlighted. 

Thank you for your time and consideration.  We look forward to a prompt response. 

Sincerely,

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