Ph Physicia ian-Victim Appr pproac oach h to o Hum uman an Tr - - PowerPoint PPT Presentation

Ph Physicia ian-Victim Appr pproac

• ach

h to

• Hum

uman an Tr Traf afficking ng A A Heal ealthc hcar are and and Heat eath Law h Law Per erspec pective: The The nec neces essar ary com

• mbi

binat nation

• n of
• f Heal

ealth, h, Law Law, Dat ata a pr prot

• tec

ection, n, and and Publ ublic Order der Prof

• f. Alfons
• nso
• Lopez

Lopez de de la a Osa a Escriba bano no Uni niver ersity of

• f Hous
• uston Law
• n Law Cent

enter er

Human Trafficking, Healthcare approach and Health Law:

• What is the U.S. Law saying about HT?
• What is the framework existing at State and Federal

level?

• What are the legal issues arising?

When speaking about heal health and human human t traf afficki cking, we normally talk about:

• Range of abu

abuse ses and traumas victims endure

• The cons

nsequen equences es of them, in acute and long-term physical and psychological problems (Atkinson et al, JHT, 2016)

• Adverse physi

physica cal outcomes: Injuries from violence (bruises, concussions, fractures, lacerations, perforations of vagina an rectal walls), infections (sexually transmitted diseases –STDs), pelvic inflammatory disease – PID, and HIV/AIDS; gynecologic issues (repeated unintended pregnancies/abortions, lacerations, hemorrhaging), untreated chronic conditions (diabetes), malnourishment and poor dental care (Kiss et al, 2015)

• Adverse psychol

chologi

• gical

al outcomes: Complex trauma related posttraumatic stress disorder (PTSD), anxiety disorder, major depressive disorder, suicidal ideation, psychosomatic illness, trauma-bonding and Stockholm syndrome, drug/alcohol addictions, and eating disorders (Zimerman et. al 2008)

• We can also understand, Pu

Public lic H Health lth and Human uman T Traf affick cking ng:

• What is the Pub

ublic H Heal ealth appr approach?

• Actions taken to protect people from a commu
• mmunity per

y persp spective ve;  The individual is seen as membe member of

• f the

he commu

• mmunity: and is protected through pr

promot

• motion of good

health habits and conditions, educ ucat ation

• n, etc.
• in our topic: about identifying HT, educating to know more about it, to detect it, setting

commu

• mmunity ear

y early w y war arni ning al aler erts.

• Then, the Heal

ealthca care approach

• ach,
• What is the Heal

ealthca hcare approach? The individual dual p perspect pective of the victim of human trafficking when he/she interacts with a physician, or healthcare provider, in a large sense.

• In

Indiv ivid idual h l health lth vs. col

• llect

ctive ve heal health ( (of

• f cou
• urse

se, t they ar hey are not e not di disco connected)

• By connecting HT with a Heal

ealth Law h Law perspective, we narrow the circle to fight it, helped by the Law, and addressing questions such as…

A Bila Bilate teral l dia ialo log, built normally on:

• reciprocal con
• nfide

dence and t and trust ust,

• pat

patien ent pr privacy cy and confid fidentia tiality lity,

• on informed c

ed cons nsent ent: information and voluntarily approach, true information given by patients for diagnosis and treatment by physicians, are basic.

• But are HT victims really in a confident atmosphere? No, not initially.

Why? hy? shame, fear of retaliation, unwilling to identify themselves or tell the real origin of their suffering, vulnerability, lack of education, lack of knowledge of until what point the system can be of help, abduction, etc. Who are these heal health per h perso sonnel interacting with them?

• Physicians, medical intern, hospital personnel engaged in the examination, care or treatment of persons,

medical examiner, psychologist, emergency medical technician, dentist, nurse, chiropractor, podiatrist,

• ptometrist, osteopath, allied mental health and human services professional, drug and alcoholism counselor,

psychiatrist. Physicians are in a uni uniqu que pos position at the intersection between health and the law (Powell et al. JHT, 2017), “vital important players”, “play a critical role”, they ar hey are e PRICELESS, because of the situation in which they are.

• Able to det

etect

• after correspondent trainings,
• r to some healthcare personnel, even without it, with the characteristics clin

linic ical e l eye, medical intuition: “something is wrong here…”

• Able to repo

port to law enforcement, or public health authorities.

• They can contribute with their action in the Prosecut

ution.

• As well as in allowing the

he victim’s repa pair: a a comp mpen ensation ( (is the here f finally any ny…?).

Down the road, we can find different legal i gal issues ues arising in the Physi ysici cian-Vi Vict ctim a m appro roach ch t to HT:

• Data p

a prot

• tec

ection ion i issues ues.

• Professional secrecy, privacy, confidentiality,
• In general, when an information is Protec

ected H ed Healt alth I h Infor

• rmat

atio ion (PHI) I) according to HIPAA (Health Insurance Portability and Accountability Act 1996), no discl closu sure re i is p possi ssible.

• Lack o

ck of c conse sent to discl sclose se

• Diffic

icult lt p proc

• ced

edur ure e to r repor port, complexity of it. Besides, psycho holog logic ical al i issues ues: fear of retaliation from victim and physician, individualism, etc.

HIPP IPPA.

• HIPA

IPAA regulates the people who hold the information: hospitals, health plans, & health care clearinghouses:

• called “covered entities”, and how they have to safeguard medical information.
• HIPAA, created in 90’s: electronic health records were pretty new concepts.
• HIPAA, to facilitate:
• the exchange of electronic health info
• and continuity of insurance coverage,

but pr privacy and y and s secu ecurity r y rul ules es are key, because HT T Vic Victim tims: have their right ght to

• pr

privacy cy t too

• o.
• HIPA

IPAA Pr Priv ivacy R Rule le specified:

• how cove

vered ent entities may es may us use and and di discl close se PHI,

• What are pat

patien ent r right ghts with respect to PHI. 45 45 CFR sect ection 164. 164.500 et et seq eq.

What is is PHI? I? Rules define protected health information (PHI) as heal alth i h infor

• rmat

ation paired with at leas ast o

• ne

ne o

• f 1

18 i 8 ident dentifiers. Individually identifiable information; that can be used on a reasonable basis, to iden dentify i indi ndivi vidual al.

• 1. Name

mes

• 2. All geographical subdivisions smaller than a State, including street

eet a addr dres ess, , city ty, , coun

• unty,

, pre reci cinct ct, , zip c p code

• de, and their equivalent

geocodes, except for the initial three digits of a zip code, 3. All elements of dates (except year) for dates directly related to an individual, including birth date, admission date, discharge date, date of death

• 4. Phone n

e number bers

• 5. Fax n

number bers

• 6. Electron
• nic m

c mail addr dres esses es

• 7. Soci
• cial S

Secu ecurity number bers

• 8. Medical

al r recor

• rd n

d number bers

• 9. Health p

h plan b n benef eficiar ary n number bers

• 10. Accoun

unt n number bers

• 11. Certificat

ate/ e/licens ense n e number bers

• 12. Ve

Vehi hicl cle iden dentifiers a s and s nd seri erial num umbers rs, including licen cense se p plat ate numbers

• 13. Devi

vice ce i iden dentifier ers and serial numbers

• 14. Web U

Univer ersal al Resou

• urce

ce L Locat ator

• rs (URLs)
• 15. Inter

ernet net P Protoc

• col
• l (IP) address numbers
• 16. Biomet

etric i c identifier ers, including finger and voice prints

• 17. Full f

face p e photogr graphi aphic images ges and any comparable images; and

• 18. Any other unique

ue ident ntifying n ng number ber, c charac acter eristic, c, o

• r code (note this does not mean the unique code assigned by the

investigator to code the data)

• Very hard to de

de-id identify tify d data ta (encryption, codification, dissociation, pseudonomyzation processes) and still have have it it be usefu ful l for many purposes. Not to mention in HT (it is not impossible though: giving a code de to the victim?).

• De-id

identific tificatio tion, makes difficult use the information with law enforcement premises (identity, location, habits, etc.)

• Main premise, the HIPAA Rule: PHI i

is con

• nfide

dential and c and can annot be be rel elea ease sed w without hout pat patien ent’s w s written en aut autho horiza zation. Except…for:

• Treatment
• Payment
• Hospital Operations
• To friends and family involved in the patient’s care
• For directory purposes (and to the clergy)
• For research if the IRB waives consent/authorization
• For preparatory to research purposes
• Incidental disclosures of PHI
• publ

public heal c health, l law aw enf enfor

• rce

ceme ment, and l and legal egal pr proce

• cess

ss ex except eptions

• ns, wher

here H HT ent enter ers

Uses and disclosures for publ public hea c health activities: CFR FR › Title 45 › Chapter A › Subchapter C › Part 164 › Subpart E › Section 164.512 Code o

• f

f Fe Federal l Regula latio tions ( (CFR FR), Title , Title 45 (b) b)Standard: U Uses and es and di discl closu sures f for

• r publ

public heal c health ac activi vities - (1) 1)Permi mitted us uses and di and discl closu sures.

• s. A cov
• ver

ered e ed entity may use or disclose pr prot

• tect

cted heal health i inf nfor

• rmat

mation for the public health activities and purposes described in this paragraph to: (i) i) A pub public hea health aut h authority that is aut autho horize zed by by l law aw to

• col
• llect

ect or

• r rec

eceive ve such information for the pur purpose se of

• f

preventin ting o

• r contr

trollin lling d dis isease, in , inju jury, o , or dis isability ility, including, but not limited to, the he repo eporting of

• f di

disea ease, i inj njur ury, vita ital l events ts such as birth or death, and the conduct of public health surveillance, public health investigations, and public health interventions; or, at the direction of a public health authority, to an official of a foreign government agency that is acting in collaboration with a public health authority; (ii) ii) A publ public heal c health aut autho hority or other er a appropr

• priat

ate g e gover ernment nment a author

• rity authorized by law to receive reports of chi

hild d abu abuse se or neglect;

• Does HIPAA it says something about HT? No, it stays too large. It would helpful to be mentioned…

• U.S. law

aws abou about H Human uman T Traf affick cking ng:

• Trafficking Victims Protection Act 2000 (TVPA) (perpetrators and victims were punished)
• Trafficking Victims Protection Reauthorization Act (TVPRA):
• 2003 (civil right of action for trafficking victims to sue their traffickers)
• 2005 (pilot program to shelter minors; includes provisions to fight sex tourism)
• 2008 (unaccompanied children screened as potential victims; enhances criminal sanctions against

traffickers)

• 2013 (avoids purchasing products made by HT victims; avoids child marriage)
• Justice for Victims Trafficking (JVTA 2015) (where victim’s perception changed. Victims are not anymore

criminalized).

• Trafficking Awareness Training for Health Care (Act 2015): (the Agency for Healthcare Research and

Quality, gives a grant to the accredited school that could determine best best pr pract actice ces f s for

• r heal

health c car are profes essi sional

• nals t

to recogn

• gnize a

e and r respon pond a d appropr

• priat

atel ely to victims of severe forms of human trafficking)

• All 50

50 stat ates and t and the he District of

• f Col
• lumbi

umbia, have have ena enact cted l legi egislation mak making ng huma human t traf afficki king a a fel elon

• ny of

y offense ense (the first Washington HT criminal statute in 2002).

• Every state has Child abuse and neglect laws.
• Though, States have diffe

ifferent d t defin finitio itions o

• f

f what t constitu titute tes h human tr traffic ffickin ing…

• Disper

ersed S ed State L e Laws dealing with:

• Sex and/or labor human trafficking.
• Statutes and laws dealing mainly with educa

ducation

• n a

and t nd trai raining ng.

• Some with manda

dator

• ry r

repor port

• 17 states have enacted legislation bot
• th to s

sex a ex and nd l labor abor traf rafficki cking (expect Minnesota that only deals with child sex trafficking), from them:

• 13 specifically addresses the educ

ucat ation

• n of health care providers and other professionals about human trafficking
• 7 states require mandat

dator

• ry r

repor

• rting of trafficking of minors
• 3 both: educat

cation

• n and mandat

dator

• ry r

repor porting ng laws (CO, MA, NC)

• Ab

About

• ut 7

7 stat ates s with h speci pecific m mand andatory y repo eporting l laws r s reg egar arding H HT: Al All seve ven s stat ate r e repo eport onl nly m y mand andate to m mino nors s : why? We need to expand this scope to adults.

• CA

CA: only require sex trafficking

• CO

CO: only require sex trafficking

• FL

FL: addresses both sex and labor trafficking

• IL

IL: also mandated residents of state facilities aged 18-22.

• MD

MD: only require sex trafficking

• MA

MA: addresses both sex and labor trafficking

• NC

NC: addresses both sex and labor trafficking

Repor eporting: :

• The “See s

ee some

• mething, s

say s ay some

• mething” in the healthcare provision world,
• physicians are in this uni

uniqu que posi position

• n.
• We have a doub

double di direct ection flux of information:

• Human

uman T Traf afficki cking c commi

• mmiss

ssions informing and training healthcar hcare p e provider ders on how to identify victims when engaged in exam aminat nation, care re, or treat eatme ment of

• f per

perso sons.

• For healthcar

hcare p e provider ders to be able to repo eport to publ public heal c health aut autho horities, but also to pol police and l and law aw enforcement ement, issues or cases related to persons that could be considered victims of human trafficking.

• The cons

nsequen equences es of report: police or law enforcement will inquiry and look closer to the victims situations, fighting HT.

When hen t to

• repo

eport? 5 states: immedi mmediat ately, as as s soo

• on as

as poss possibl ble.

• MASS extends to 48

48 hour hours, mandating written r en repor eport, the rest or

• ral

al is enough. What hat happ happen i if fai ailur ure t e to

• repo

eport?

• Failure to report is sub

ubject ct t to

• esca

escalat ated pena penalties

• fines,
• criminal misdemeanor,
• felony –when repeated offense-
• MASS or CA:
• For not reporting: fine is $1,000;
• but if willfully failure to report ends, in dead

dead or ser erious bod s bodily i y inj njur ury: $ 5,000 and prison up to 2,5 years.

• MASS: has 2 novel provisions:
• To protect repo

eporters f s from

• m wor
• rkplace r

ret etal aliat ation

• n f

for

• r havi

having ng r repo eported i in n goo good f fai aith

• Requires the Depar

epartment of

• f Chi

hildr dren en and F and Fami amilies gi es give w written en not notice ce t to

• the

he repo eporter w withi hin n 30 30 days days of the

• ut
• utco

come me of the report and any services provided to the victim.

• Instruct

uctive f e feedbac dback k for physicians… shows the repo eport s syst ystem m works

HIPPAA a PAA allows ws reporting, even when state laws do not mandate disclosure for suspected trafficking of a minor.

• 2 s

scena enarios

• s according to HIPAA:
• Patient/victim disc

sclose

• ses
• Patient/victim doesn’

esn’t c conse nsent t to disc sclos

• se:
• Then physicians, where mandat

ndated ed repor

• rting

ng exist, have to do it

• Also disclosure, when i

en immine nent nt d danger nger of patient ent and Staff (emergency situation).

• But, where State Laws do not mandate, phys

ysicians ans coul uld d legal gally repor

• rt trafficking

ng of minor

• rs (it should also allow the report of an adult

persons victim of HT)

• The abs

absence of

• f ment

mention or

• r mand

mandate, does not prevent physicians to “sa say so y something”.

• Regul

gulat ating t ng the p prohibi bition

• n of reporting, is what woul

uld p d prevent vent phys ysicians ans to react, not the opposite. “Whatever is not prohibited is allowed”.

• The analogy to reporting laws apply afterwards…
• Where mandat

dated ed, reports have to be made to.:

• The compet

petent nt l legal al a author hority y empowered to receive those reports

• The discl

sclos

• sur

ure o e of infor

• rmat

ation

• n should be the only r

y requi uired, ed, or neces cessar ary, y, under mandated reporting laws

What hat t to

• col
• llect

ct? There is no c cons nsensus ensus of what hat gets collected, how how to

• col
• llect

ect the data, where to keep it, or what hat to

• do

do with h it. It should be (medi medical) i inf nfor

• rmat

mation that allows to be transformed, to det detect ct a a victim m of

• f HT, to provide usef

eful ul inf nfor

• rmat

mation ( (but but: qual quality of y of the he dat date pr e princi nciple…):

• To investigate around the victim: victim identification, location, emails, etc. (all HIPAA identifiers…)
• To protect the victim from the trafficker
• To repair the damage of the victim

Po Possib ibility ility: Sta : State te C Centr tral o l or Fe Federal l Regis iste ter: wher here al all the he heal health i inf nfor

• rmat

mation (useful for HT) could be stocked? If accessible, it enables Depar epartme ment of

• f Chi

hildr dren en and F and Fami amily S y Ser ervi vice ces or

• r the c

he comp

• mpetent aut

autho hority y to immediately have access to information.

CONCL CONCLUSION ONS

• Physicians

ans: increasingly targeted by passing legislation, speci pecifica cally a y add ddresse sses p physi hysician an and other health care providers roles

• especially in traf

rafficki cking o

• f mino

nors f s for

• r c

commer ercial al sexu xual e expl xploitation

• n.
• Duties

es:

• Imposing reporting obligations
• Legislation creating educ

ucat ational

• nal initiatives and mandat

dating ng the repor

• rting

ng of trafficking victims by physicians and other health professional.

• Challen

enges ges:

• Victims do not want to tell
• Physicians do not want to participate
• Avoid the mandatory perspective to report, generate solid

lidarit ity (and civi vic c c consci

• nscience

ce through educ ucat ation

• n). Because we seek to

fight HT and to make a posi

• sitive

ve i impa pact ct o

• n t

n the he lives ves of trafficked victims.

• Because of the uncertainty that might exist it is always wise to be on the side of protecting patients/victims
• Lega

egal c chal hallen enges:

• Disperse laws, confusion, various definitions
• Relevant legislative efforts, but more needs to be done in terms of clarification and coordination at federal level

• National

al c coor

• rdi

dinat nation n

• n needed

ded on: What, How, Who, Where to report?

• Create a National Network Data Organization for HT where also health information would be processed
• As an intermediate body (or use an existing one) between physicians and law enforcement that could process

information.

• The basic targets (the 4 P’s + R): Prevention, Protection, Prosecution, Partnership
• Plus one more:
• Recovery; compensation; retribution; repair to the victim; to assist and support
• a special mention about the reintegration of the victim/patient into society (children, men and women

trafficked).

• Economic challenges.
• Funding resources,
• Material and Human resources to allow a distribution of funds to all the sectors involved to cope with expenses

(training, management costs, etc.)

THA HANK NK Y YOU U