HHS 201 Introduction to Human Services Wk5
Chapter 14 Understanding Legal Issues
On October 5, 1994, the American Civil Liberties Union of Ohio filed a lawsuit against the City of Cleveland on behalf of four homeless plaintiffs and the Northeast Ohio Coalition for the Homeless. The plaintiffs allege that Cleveland police officers, under the direction of their superiors, engaged in “dumping” homeless people—a charge that the defendants flatly deny. The complaint sought injunctive relief to halt an unconstitutional practice under which police officers physically remove homeless and/or destitute individuals from certain sectors of the city, transport them against their will to various distant locations, and abandon them. (Spare Change, 1995)
14.1 Legal Issues that Can Confront a Worker
The preceding case is one example of the many kinds of legal issues that a human service worker might deal with. It is impossible in one chapter to cover all the legal issues that affect human service workers. Not only can they seem overwhelming, but no human service worker knows the ins and outs of every issue. However, it is vital that we be sensitive to legal rights and dilemmas and that we seek further help when on shaky ground. Knowing where to turn and being willing to ask for help are strengths of a conscientious worker.
To begin your thinking about legal issues, take the following quiz. We would be surprised if you knew all the answers. Legal issues in the human services can be complicated.
Question 1: An eighteen-year-old high school student began to wonder just what her teachers had been writing in her record since she started school. She asked her home-room teacher if she could look at her cumulative school record. The teacher said no because it would violate the confidence of all those teachers who had counted on some measure of confidentiality. Did the teacher break the law?
Question 2: In 1974 the State of Georgia set up a central computer bank to store mental health information about its citizens. State officials requested all clinics and community mental health centers to send in the following information for each new patient: background data, Social Security number, the nature of the patient’s primary disability, previous mental health services, and diagnosis. A human service worker at a community mental health clinic asked all her clients to sign this medical release authorization, which read:
The state wants to keep a record of name, Social Security number, and the type of problem of every person who comes for mental health services. The reason why the state wants this information is so that it can keep track of mental health services and clients throughout the state. If you sign this paper it means that you give us permission to send your name, Social Security number, and diagnosis to the state offices in the capital, where it will be placed in the mental health computer file. (Rosen, 1976, p. 285)
Question 3: Felicia, a twenty-three-year-old woman who had been adopted, wrote to the state registrar of vital statistics in New Hampshire to request a copy of her original birth certificate. After receiving it, she went to the agency that had placed her with her adoptive parents to ask their help in finding her biological parents, who were named on the birth certificate. The adoption worker agreed to help her with this search (Weidell, 1980). At the same time, Felicia’s twenty-one-year-old brother Paul, who had been placed for adoption in Washington D.C. where his biological mother had moved from New Hampshire, wrote to the registrar of vital statistics for his original birth certificate, and they refused to send it to him. He went to the adoption agency, and they refused to help him.
Why did the adoption agency in New Hampshire help Felicia, whereas the agency in Washington, D.C., refused to help Paul?
If you knew the answers to these questions, you are better informed about legal issues than a good many experienced human service workers. One study found that a significant proportion of mental health professionals either are ignorant of or ignore their legal obligations (Swoboda, Elwork, Sales, & Levine, 1978, p. 448). Until recently, legal issues either have not been taught at all in human service training programs or have been dealt with superficially.
What is Wrong with What the Worker Did?
Here are the answers to the questions:
Answer 1: Yes, the teacher broke the law. According to the Family Educational Rights and Privacy Act, often called the Buckley Amendment, educational institutions that receive federal aid must make students’ records available to them if they are 18 or older and to their parents when they are minors (Bershoff, 1975, p. 367).
Answer 2: The State of Georgia, which requested this very personal information for its computer records, did not show sufficient concern for its citizens’ right to privacy. Some states have adopted progressive privacy laws, and some states have constitutional provisions protecting the right of privacy. However, clients did not have to sign that medical release authorization in order to receive service from the clinic. The mistake the worker made was not telling clients this. A study showed that when clients were told the following in addition to the first part of the statement, the majority of them chose not to sign the statement:
If you do not sign this paper, this identifying information will not be sent to the state offices in the capital and will only be kept locally. The services you get will not depend on your choice. In other words, if you don’t sign you will get the same services from us as if you did sign. (Rosen, 1976, p. 285)
The principle of consent assumes that people are informed about what they are giving consent to and that it is freely given, without any real or implied threats. If people think they will be refused services if they don’t sign the consent form, most will sign.
Answer 3: The New Hampshire agency helped Felicia in the search for her biological parents, whereas the Washington, D.C., agency refused Paul, because New Hampshire passed a law that allowed adoptees who are at least twenty years old to obtain their original birth certificate if the biological parents have consented to the search. Washington, D.C. law does not allow birth records to be revealed for such a search.
Variations in the Law
Notice as you read those questions and answers that some laws apply equally to everyone in the United States (e.g., letting students see their records), while other laws (opening adoption records) vary from state to state. As you read this chapter, some of the laws we discuss are probably already in the process of being changed by state or federal legislatures or by a court decision. Even lawyers must do constant research to keep abreast of current law in a particular field. Although most human service workers cannot know the law in the same way, they should strive to keep abreast of the particular body of law that applies to their agency population.
14.2 The Law as Resource
Laws can give people rights and resources, and therefore, workers need to know them. Suppose that a human service worker is helping a blind child and the child’s family to find an appropriate school. If the worker did not know that the Education for All Handicapped Children Act requires that handicapped children be placed in the most nearly normal setting, the worker might try to find a placement in a residential school for the blind rather than in the local school system.
This process of finding information, evaluating it as it applies to a particular problem, assessing the needs of the person or group you are working with, and finding the correct fit between person and resource, is the same problem-solving process that human service workers use in all the interventions discussed in this book.
Street-Level Bureaucracy
Although laws are passed at various government levels—federal, state, and local—most beginning human service workers will encounter those laws that affect their practice at the level of the agency in which they work. Michael Lipsky (1980) calls this street-level bureaucracy. Laws and policies are implemented on the streets where people live. A law sets the broad outlines of a program, but the face of the law that clients see is the face of the agency worker who delivers the service. Moving up the bureaucratic ladder, the worker sees the face of the law in the face of her or his supervisor and the agency director, who interpret how regulations shall be put in practice in that particular agency. In a large government agency, the state officials of that bureaucracy have written those regulations according to the way they interpret the law.
street-level bureaucracy
The way laws and regulations are implemented by human service workers at the level of direct contact with clients.
Regulations: Bureaucratic Interpretations of Law
After laws are passed, they cannot affect anyone’s life until the money is appropriated and the regulations spelling out how to implement the laws are written. Agencies don’t make laws, but their regulations define how the law will be put into practice. They end up having the same force as a law. For example, Congress passed the Rehabilitation Act for the Physically and Mentally Disabled in 1973. The regulations making key portions of it effective were not signed by the secretary of Health, Education, and Welfare (HEW) until 1977, when several disabled people protested the four-year hiatus by sitting in at the HEW office. The 1973 law stated, among other things, that barriers that prevent the handicapped from gaining access to various facilities should be removed. Yet the ramps replacing curbs at crosswalks to accommodate wheelchairs, the audiocassettes opening museum tours to the blind, or the captioned news for hearing-impaired television viewers did not appear until the secretary of HEW signed those regulations and set the procedures in motion.
Regulations are generally more specific than laws. For example, a law about licensing day care centers may say that the center shall be operated with “due regard for health and sanitation.” But it is the regulations that specify a minimum number of toilets and the water temperature for dishwashing (Brieland & Goldfarb, 1987).
Sometimes, in order to save money, officials make regulations that do not conform to the law, or they break their own regulations. This happened in 1981, when the Reagan administration ordered accelerated reviews of Social Security disability cases using what a Minnesota federal district court called “arbitrary,” “capricious,” and “irrational” standards to evaluate applicants’ eligibility for the benefits (National Association of Social Workers, 1983). Thousands of eligible people were terminated until Congress reviewed the process, slowed the rate of review, and provided for continuation of benefits during the appeals process. An attorney for the Mental Health Law Project, which brought suit in Minnesota on behalf of the disproportionate numbers of mentally ill people who were terminated, said,
The court confirmed that SSA, in its eagerness to reduce the disability rolls, has been systematically violating both the law as spelled out by Congress and its own regulations. (p. 9)
In Massachusetts, doctors were reviewing these Social Security disability cases without giving physical exams, and 80 percent of their decisions were ultimately overturned by administrative law judges. A legislative commission that investigated this said, “the doctors are following Social Security Administration regulations, while the administrative law judges are relying on federal law when they overturn the doctors’ decisions” (“The Law on Disabilities,” 1983).
“Catch-22” Regulations
Regulations can put clients in a catch-22* a situation in which they are damned if they do and damned if they don’t.
* Catch-22 refers to a novel of the same name by Joseph Heller (1961) and describes dilemmas that are impossible to solve because of contradictory requirements.
Suppose that a toddler has outgrown his or her crib and needs a child-size bed. In the state where the child lives, the welfare officials who drew up the regulations decided that public money should not be spent on beds. Therefore, the three-year-old will stay crammed in the crib or sleep on the floor.
Or suppose that a woman has been told by her landlord that she must leave her apartment. She agrees and then asks welfare for money to pay a security deposit on another apartment. The officials who wrote the regulations, however, specify that she must show the worker a court eviction order or already be evicted before the welfare department can help her pay the security deposit.
Conflicting Jurisdictions and Regulations
The different levels of government involved in the same program may further complicate the picture. This catches the client in a web of conflicting jurisdictions and regulations. Fuel assistance for poor people is one such example. A federal program provides money that some states supplement. If a state requires a client to apply first to a federal antipoverty agency for fuel assistance before applying to the state welfare department, the client can get a bureaucratic runaround and perhaps live in a freezing home until the confusing tangle is unraveled.
States and localities often implement programs that are not federally mandated. Sometimes they even challenge federal regulations. For example, at one time a federal drug abuse program had a regulation that required all states receiving money from the program to put personal data on patients into a centralized computer. Massachusetts refused to do so on the grounds that it would violate patients’ confidentiality. Some states have stronger privacy laws than does the federal government.*
* The federal law regarding disclosure of drug information was later changed to prohibit it in all states.
If the foregoing discussion has been confusing, imagine what it feels like to be a client. You might have only a dim understanding of who gives the money and makes the regulations. When you complain, you are told, “We don’t make the regulations. The ‘feds’ (state, county, city) make them.” Local, state, and federal bureaucrats sometimes fight each other about policies and regulations, passing the buck from one to the other when clients complain. Advocating for clients in these situations requires patience, tenacity, and the concerted efforts of many people and organizations.
Ambiguous Wording
Regulations are sometimes worded so ambiguously that citizen groups or individual clients challenge them, claiming they give a false interpretation of the original intent of the law. Sometimes the laws themselves are ambiguous and loosely written. When a confusing regulation is stacked on top of a confusing law, conscientious workers are also caught in a bind. How can one interpret them? Many bureaucrats are becoming increasingly aware of the immobility caused by ambiguous intent or language, and now and then agency workers are pleasantly surprised to find on their desks a revision of agency regulations written in plain, easy-to-understand English. Sometimes these regulations give examples, which can make complex rulings easier to comprehend.
Some people argue that the ambiguity of regulations is intentional. When clients don’t understand what they are entitled to, they are less likely to ask for those rights.
Learning the Regulations
Few things are more frustrating to a consumer than being served by a poorly informed worker. Think of how you feel when you ask for information about housing, financial aid, or degree requirements from a college employee and are given the runaround! A worker who is confused by the full meaning of a regulation should discuss it with a supervisor or a colleague. If the confusion persists, it is best to turn to a lawyer who specializes in this area. Most large agencies, such as a Department of Social Services or a Department of Vocational Rehabilitation, have legal divisions. In addition, there are many public-service law groups that specialize in children’s rights, welfare reform, the needs of the physically disabled or developmentally delayed, and so forth. When a new law is passed or a regulation promulgated, memos and newsletters are distributed and conferences are organized to help workers and consumers understand and use its provisions.
Without these forms of public information, none of us—human service worker, client, or lawyer—would be able to keep clear about the endless changes and refinements in social service law.
Unfortunately, the federal government has been cutting back on legal services for the poor since the Nixon administration. President Reagan tried unsuccessfully to eliminate them altogether. In 1995 the Republican-controlled Congress made cutbacks of over 25 percent in an already weakened legal services. The struggle continues today. Bureaucrats and public officials resist protests against their rules and try to weaken organizations that challenge them. Because there are not nearly enough legal services for all the people who need them, human service workers will need to learn more than ever about the law in order to be able to help their clients.
Deciding exactly what are the limits of protests is a challenge for constitutional scholars and community residents. These members of the white supremacist KKK can march in Washington, D.C., but may no longer hide their faces behind their sheets.
14.3 The Law as Restriction
Laws provide resources and rights; they also limit them. City councils and state and federal legislatures create programs; they also cut them. Delinquency and correctional programs and agencies that investigate child abuse and neglect are examples of the government policing people’s behavior. Human service workers in these programs need to be sensitive to the stigmatizing effects that such programs have on the clientele. They work to combat the stigma through social action and sensitive individual and group counseling. People may need to be stopped when their behavior is endangering themselves or others, but social stigma cripples rather than rehabilitates.
stigma
Something that detracts from the character or reputation of a person or group; a mark of disgrace or reproach.
Human service workers work with many stigmatized clients:
When parents have been accused of child abuse and a child-protection worker goes to their home to investigate, the parents inevitably feel stigmatized, regardless of whether they actually abused their child.
When a child has been labeled a “delinquent,” that label becomes a stigma that can create a self-fulfilling prophecy.
When patients in a drug or an alcohol abuse program have their names put in a centralized computer, they have legitimate fears about how this information will be used.
When people test positive for HIV, they have legitimate fears that they will be discriminated against.
Convicted sex offenders have had their mobility limited by laws restricting where they may live. One of the nation’s most aggressive attempts to limit the mobility of sex offenders was struck down by the Georgia Supreme Court in 2007. The roughly 10,000 sex offenders living in Georgia had been forbidden to live within 1,000 feet of a school, playground, church, school-bus stop, or other places where children might assemble. The prohibitions placed nearly all the homes in some counties off-limits—amounting, in a practical sense, to banishment.
The case that led to the ruling was brought by Anthony Mann, 45, who in 2002 pleaded no contest in North Carolina to “indecent liberties with a child.” On the state sex-offender registry, he is not listed as a predator. A year later, Mann married, and he and his wife purchased a home in Hampton, Georgia. At the time he and his wife purchased the home, there were no child-care facilities nearby. But one later moved within 1,000 feet of his property line, and, following the law, his probation officer ordered him to move. Mann sued.
The Georgia Supreme Court ruled that, by forcing a sex-offender from his home, the law violated his Fifth Amendment right to be safe from the government “taking” his property. The ruling said, “It is apparent that there is no place in Georgia where a registered sex offender can live without continually being at risk of being ejected” (Whoriskey, 2007).
14.4 Laws Every Worker Needs to Know
These are some areas of law that all human service workers need to understand:
Confidentiality
Privileged communication
Privacy
Due process
Some laws affect one specific field of practice. For example, only those involved with the courts need a thorough understanding of the probation and parole regulations of that particular county or state.
Confidentiality, privileged communication, and privacy, however, affect all fields of service delivery. What do they mean as legal concepts to human service workers? To summarize, a human service worker promises confidentiality to a client in order to protect the client’s privacy and develop trust between them. In a few human service relationships, the law treats those confidences as privileged communication, protected from being divulged in court. The only way that information should be shared with others outside the worker–client relationship is for the client to give informed consent. We shall discuss these concepts further in the sections that follow.
Confidentiality
Confidentiality is important in order to build trust. People are not likely to reveal anything embarrassing or intimate if they cannot rely on the helping person to keep secrets. Confidentiality means protecting a person’s privacy and respecting that person’s autonomy. Some people have such strong feelings against exposing their lives to public view that they will ask for help or reveal themselves only in dire circumstances.
Most people want the right to control information about themselves. People don’t like having secret files about them that they can’t look at or having credit records given out that might damage their ability to get a loan or buy a car. People get angry when they talk to someone in confidence and that person spreads their secrets to others without permission. We feel betrayed if a person violates our trust.
The psychotherapeutic relationship depends on confidentiality. People need to feel free to express their most private thoughts, feelings, and impulses. Some psychotherapists have gone to jail rather than testify in court about their patients. Some therapists have stopped including highly personal material in their notes to protect clients’ confidences in case a court subpoenas the notes.
Social agencies usually have a specific policy on confidentiality, but these statements are often vaguely worded, containing many ifs, ands, and buts, which create many loopholes. In practice many agencies freely give out information about clients to other agencies, human services data banks, police or court officials, schools, employers, landlords, and researchers from both public and private groups. One experienced worker laments:
It is not unusual for intake workers to have their new clients routinely sign a handful of blank consent forms “to make it easier for everyone.” These forms authorize the agency to seek or release information about the client to almost everybody at any time under any circumstances. With the client’s signature already obtained, the worker can fill in the blanks later when a need arises to disclose data. This system doesn’t allow the client to maintain any meaningful control over the content of his case record. Thus, many settings (and federal regulations) are requiring that the client’s consent be “informed.” (Wilson, 1980, pp. 189–190)
This violation of confidentiality is not ethical, but it is legal. Two lawyers who studied the daily practices of public agencies concluded that clients of welfare or other social service agencies have no legal right to privacy and no legal way to fight a breach of confidentiality except where the federal Privacy Act or a state privacy act covers the agency’s operations (Hayden & Novik, 1980).
Privileged Communication
Privileged communication gives legal protection to some human service workers against having to reveal a client’s confidences in court, unless the client consents. It has historical roots in the privileged communication of the lawyer–client relationship, which held that confidences told to the lawyer must be kept secret to protect not only the client but, more importantly, to protect the right of all clients to be represented by counsel. Privileged communication is essential to ensure that clients will confide in their lawyers.
privileged communication
Legal protection of confidences revealed in certain specified relationships.
However, some states have freed lawyers to violate a client’s confidentiality if they believe doing so could prevent injury or death to another person. California passed such a law in 2003, which states that the attorney–client privilege can be broken when a lawyer “reasonably believes” that disclosure is necessary to prevent a criminal act by any person, including a client, that could result in death or substantial injury. While disclosure is discretionary, not mandatory, the law was opposed by many lawyers and by the San Diego County Bar Association, which feared that it would “discourage clients from being forthright and complete” (“State Bar to Allow Lawyers to Break Confidentiality,” 2004).
Privileged communication has been extended to other relationships in which trust is of the utmost importance—husband and wife, priest and penitent, psychiatrist and patient, journalist and source, and sometimes psychologist and client and social worker and client. Although it protects certain professionals from having to reveal confidences in court, it is not an absolute privilege. In fact, there is considerable disagreement and debate about this concept, even among lawyers. Some argue that privileged communication should be restricted when there is a threat to society, as when a client tells about a crime he or she has committed or is contemplating.
Human service workers are sometimes caught in an agonizing bind when they are subpoenaed by a court to testify. The worker may have promised clients that the information given them was confidential, honestly believing that he or she could guarantee confidentiality, but the state he or she works in does not provide the legal protection of privileged communication. The following are three examples of cases that have been contested in court:
Director of a rape crisis center threatened with jail for refusing to give the court a rape crisis file. Nassrine Farhoody, director of a rape crisis center in Worcester, Massachusetts, refused to release records of a client’s rape counseling, which put her in contempt of court. She faced a jail sentence but fought the case all the way up to the state’s Supreme Judicial Court, which decided in her favor in July 1996 and tightened access to rape counseling records. The confidentiality of rape counseling sessions in Massachusetts is now as protected as the confessional with a priest. The woman whose records Farhoody refused to release during the rape trial came close to saying, “Turn over the records. I can’t deal with this” (Coleman, 1997). But each time, Farhoody assured her she was willing to carry the burden. “She keeps saying she’s only doing her job…. I love that woman,” said Darlene, who doesn’t want her last name used (p. D1).
Rape victims’ center defends confidentiality. Erin Marie Ellis, the executive director of Washington County’s Sexual Assault Resource Center in Oregon, was in court with her nine-year-old child, ready to be sent to jail for challenging a defense lawyer’s subpoena seeking records on a rape victim whom the center counseled. A judge quashed the subpoena on a technicality on the eve of trial, but the case highlighted the ongoing effort by statewide advocates working for nonprofit sexual assault crisis centers to protect their clients and maintain confidentiality.
“Once we start losing control of our records, it greatly diminishes our ability to do our work and do it well,” Ellis said. Gina McClard, associate director of the National Crime Victim Law Institute at Lewis & Clark Law School in Portland, said, “This is a privacy issue for rape victims, but it’s also a crime-prevention and a crime-fighting tool.” “Rape is the least-reported crime. There’s no reason we should put up another barrier” (Bernstein, 2004).
Eighteen agencies refuse to turn over records to Department of Social Services. In a successful court suit in 1982, eighteen agencies in New York City that had contracts with the New York City Department of Social Services were threatened with having their funds cut off if they did not turn over their clients’ case records to that agency. A U.S. District Court judge ruled in the agencies’ favor, saying the information in the records “may well be constitutionally protected in that it touches upon intimate personal and family matters and was disclosed in confidence with some reasonable expectation of privacy” (National Association of Social Workers, 1982, p. 3).
Women’s crisis intervention agencies in Maine scored a victory for confidentiality in 2004, when the state enacted a law to protect victims of domestic violence attempting to elude their assailants. The law established a program that provides a designated address to individuals who have relocated or plan to move to a location unknown to their abuser. It also provides participants with a first-class mail-forwarding service and a designated address that has no relationship to the participant’s actual address. As a result of the program, victims of domestic violence, sexual assault, and stalking are able to interact with businesses, government agencies, and other organizations without disclosing their actual address (Higgins, 2004).
A majority of state legislatures have enacted legislation privileging the communication between rape crisis counselors and sexual assault victims.
Some research projects have been charged with violating confidentiality. For example, a research project that involved drug testing of high school athletes in Oregon did not protect the students’ confidentiality because students who refused to participate in the research or who tested positive for drugs came to the attention of coaches and principals were prohibited from engaging in school sports, and could be suspended from school:
Considering the profound social and psychological importance of peer relationships among adolescents, the loss of confidentiality results in humiliation as well as the public airing of drug-using status, assuming that the test result is a true positive. Confidentiality requires that the consequences of trial participation not be subject to publicity of any form in which individuals are reasonably at risk of identification. (Shamoo, 2004)
Agencies sometimes invoke confidentiality as a way of avoiding public scrutiny of their failings. Child welfare agencies have legitimate reasons for assuring their clients that information will be kept confidential. Many people would not report child abuse if their identity were known; people who have been charged with abusing children do not want publicity. Yet when an agency is failing to protect the children who are in its care from abuse, it may not be possible to correct the agency’s failings unless the public is informed and presses for change through the legislature. In 1999, two children ages 11 and 9, who had been in the custody and care of the New Jersey Division of Youth and Family Services (DYFS) for more than five years, brought a class action suit which alleged a systemic failure of the agency to protect them and twenty other children from harm “and to provide their families with support and services to maintain adequate health and safety”.
Since then, the tragic death of a foster child, Faheem Williams, and the abuse of his siblings, who were known to DYFS, encouraged the plaintiffs and interveners to request a modification of the existing confidentiality order in the class action suit. They asked for public disclosure of materials pertaining to child fatality and near-fatality cases. The New York Times and the Newark Star Ledger joined the suit, requesting permission to publish the information. The U.S. District Court of New Jersey ruled that because DYFS is a public agency, the public has a right to know some relevant information regarding the health and safety of the children. The court gave the newspapers the right to review about 10 percent of the agency’s files related to child death reports and other substantiated reports, but not identifying information about children currently in the custody of DYFS. The court attempted to “strike that balance between protecting the privacy interests with the public’s right to know” National Center for Youth Law (2001).
Professions and Privileged Communication
Although privileged communication protects both the client and the professional, the confidence belongs only to the client, and only the client can waive it. Some states grant the privilege to clinical psychologists and to social workers. Human service professionals try to get broader legal coverage and stricter laws.
The confidentiality of a patient’s communications with a psychotherapist was guaranteed on a federal level in a 1996 Supreme Court decision, Jaffee v. Redmond. The Health Insurance Portability and Accountability Act of 1996 (HIPAA) required rules to be drawn up governing the privacy of health and mental health information. The rules were four years in the making, and in 2001 the Department of Health and Human Services announced them. The rules now:
Require clients’ consent in order to disclose health information for the purpose of treatment, payment, and health care operations.
Preserve state laws’ stronger privacy protections, where they exist.
Recognize that psychotherapy notes require a greater level of protection than other types of health records (Moss, 2001).
Prohibit employers from receiving personal health data, except for the administration of health plans.
Subject people who misuse private medical records, such as selling them, to fines or imprisonment (O’Harrow, 2001).
However, the rules allowed doctors, hospitals, other health services, and some of their business associates to use personal health records for marketing and fund-raising. In response to customer concerns that the marketing provision in the law did not protect privacy, the Department of Health and Human Services modified the law in August 2002 to prohibit selling lists of patients or enrollees to third parties without an individual’s prior authorization. However, marketing to doctors is still permitted.
The new rules also say that sick patients will not be required to visit a pharmacy themselves to pick up a prescription but can send a family member or a friend instead (U.S. Privacy, 2002).
The Act applies to medical records only if a health care facility maintains and transmits records in electronic form. A great deal of health-related information exists outside of health care facilities and the files of health plans, and thus beyond the reach of HIPAA (Privacy Rights Clearinghouse, 2010).
You have probably seen the effects of this law when your doctor or hospital handed you a “Notice of Privacy Practices” brochure and asked you to sign a form saying that you had read it. You may notice greater privacy in the reception room and changes in sign-in sheets so that patients can’t see each other’s names.
Despite this law, a national survey showed that an overwhelming number of Americans fear that their psychological health records are not kept confidential, particularly from their employers. And most people are not aware that many insurance plans require a diagnosis of mental illness to cover ongoing counseling. Many people are reluctant to seek psychological health care for fear their psychological health records may be shared with their employers or others. Two-thirds of Americans would not be likely to tell their employer they were seeing a mental health professional, and 70 percent would not tell their work associates. Half of Americans said they would hesitate to see a counselor if a mental illness diagnosis were required. To address these concerns and ease the strong stigma that is still prevalent in America, some health care professionals created a counseling service called OnMind Psychological Services, based in Kansas City, Missouri, which does not participate in insurance plans and does not require a diagnosis of mental illness for treatment. It charges fees directly, but its fees are at least 50 percent lower than national averages (PR Newswire, 2004b).
If human service workers do not have the protection of privileged communication, they must decide, with the help of their agencies, what to do if they are subpoenaed to appear in court with certain information. Even though a subpoena looks impressive, even frightening, you need not automatically comply with it. You can challenge its validity or relevance or the information it requests. You can contest it, with the help of a lawyer, by claiming privileged communication or other legal regulations. Most agencies have legal consultation.
Limits on Privileged Communication
There are certain legal limits on privileged communication. Privileged communication laws do not grant protection from reporting child abuse. All fifty states have passed some form of mandatory child abuse and neglect reporting law.
Some highly publicized cases of priests and church youth workers sexually abusing children have helped to create public demand for applying these laws to priests. In Massachusetts, a youth worker at a church pleaded guilty to dozens of child sex abuse and pornography charges, and a former priest was accused of repeatedly molesting children during a twenty-seven-year career in the church. Two dozen of the priest’s seventy-seven alleged victims sued Cardinal Bernard F. Law for transferring the priest from parish to parish.
Some states have extended the reporting requirement to include reporting the abuse or neglect of people who are disabled or incompetent, particularly the dependent elderly (Gothard, 1995).
Most states have passed laws mandating that police arrest a person who batters another person and have also passed laws that mandate treatment programs for those convicted of domestic violence. Work with batterers poses dilemmas regarding confidentiality because counselors are required to report on the progress of the treatment to the court. Most treatment programs for batterers have a written contract explaining that because both the court and the agency want the victim to be safe, they will contact both the court and the victim to inform them of the batterer’s progress in treatment. Participants are required to sign this contract before they begin treatment (Buttell, 1998).
Probation and parole officers and counselors who work with prisoners cannot assure their clients of confidentiality because they are required to report violations of probation, parole, or prison rules to the authorities. Clients should be informed immediately of the many limitations of confidentiality.
Workers in agencies receiving federal funds are prohibited by federal regulations from disclosing information about a client’s substance abuse without the client’s consent. But even the federal code of regulations allows disclosure of confidential information in cases involving such offenses as child abuse, homicide, rape, or aggravated assault (Landers, 1998).
Privileged Communication and Individual and Community Rights
Laws often require a professional to break confidentiality if there is a possibility of a crime being committed. In a landmark 1974 case, Tarasoff v. California Board of Regents, an eighteen-year-old high school senior told the school psychologist in a therapy session that he planned to kill a girl when she returned from a midsemester vacation with her parents. The psychologist agonized over the ethical dilemma she was in. Should she break the confidence of the therapy relationship? Was the murder threat genuine? Convinced that it was, she called the campus police and asked them to take the student into custody for possible commitment. The police took him in, but convinced that he was rational, released him on his promise to stay away from the girl. The psychologist wondered if she should warn the young woman but, following her interpretation of the American Psychological Association Code of Ethics,* did not do so. The student carried out his threat eight weeks after he had confided in the psychologist. The parents of the dead girl sued the psychologist, the school, the psychologist’s supervisor, and the campus police. The parents charged them with negligence in failing to warn the girl of the student’s threat. The court ruled that the psychologist was negligent in failing to warn the young woman.
* APA’s Principle 4.01 Maintaining Confidentiality: Psychologists have a primary obligation and take reasonable precautions to protect confidential information obtained through or stored in any medium, recognizing that the extent and limits of confidentiality may be regulated by law or established by institutional rules or professional or scientific relation. Principle 4/02 Discussing the limits of confidentiality: Psychologists discuss with persons (including, to the extent feasible, person who are legally incapable of giving informed consent and their legal representatives) and organizations with whom they establish a scientific or professional relationship (1) the relevant limits of confidentiality and (2) the foreseeable uses of this information generated through their psychological activities. (American Psychological Association, 2010, Ethical Principles of Psychologists and Code of Conduct, http://www.apa.org/ethics/code/index/aspx).
Laws often reflect public opinion. This family is helping create a favorable climate for gays and lesbians so that laws will not oppress their lesbian daughter.
There are no easy answers. If you know that in an interview you will not be able to keep everything confidential, tell the client in advance. Discuss with the client what you must reveal. If you are a probation officer working with juvenile delinquents, you are legally required to tell the court if a juvenile has violated parole. If you are an assistance payments worker in the Department of Welfare, you are required to act if your client has broken welfare regulations. If your clients know these rules, they can make their own decisions about what to tell you.
Privacy
Privacy can be defined as the “right to be left alone.” In many state constitutions, it is defined as an individual’s right to decide how much to share private thoughts, feelings, and facts of one’s personal life. In other words, no one has a right to make public anything about a person that the person wants to be kept secret. Before a human service worker gives information about a client to someone outside the relationship, the client must give informed consent. This means that the client understands exactly what the consequences of the consent will be before giving it and that consent is given willingly, without any coercion or fear of reprisal.
privacy
The right to be left alone.
informed consent
Agreement given with the understanding of the full implications of what one is agreeing to.
Most human service professional societies have codes of ethics that are intended to provide their members with guidance on how to protect clients’ privacy. However, these codes are rarely revised often enough to keep up with changing circumstances. They are not always helpful guides to the legality of any one particular action. Here are two examples:
Research project on drug use violates privacy. In a junior high school in Pennsylvania, a consulting firm wanted to administer questionnaires for a study designed to identify potential drug users. The school psychologist, seeking guidance from the codes of ethics of the American Psychological Association and the National Association of School Psychologists, followed what she interpreted as their guidelines in requesting the consent of the research subjects. Some parents, however, sued the school to prohibit the research study, and the U.S. District Court (Merriken v. Cressman) agreed with them. The court concluded that even if the subject signed a release, it did not constitute informed consent because the students and parents were not given enough facts about the reasons for the test or the ways in which the test was going to be used to identify and counsel potential drug users. In balancing the right of an individual to privacy and the right of the government to invade that privacy for the sake of the public interest, the court struck the balance on the side of individual privacy, believing that “there is too much of a chance that the wrong people for the wrong reasons will be singled out and counseled in the wrong manner” (Bershoff, 1975, p. 367).
Court says that state agencies giving records to each other violates privacy. The question of whether state records in one bureaucracy should be made available to another without client consent was tested in Massachusetts in 1979, and the client won. Jose Torres, represented by the Juvenile Law Reform Project, was the plaintiff in a class-action suit against the state’s Department of Mental Health and Department of Education.
The suit was brought in an attempt to obtain services for Torres and other emotionally disturbed adolescents. In preparing the state’s defense, the attorney general obtained information about Torres that was in the state’s Department of Social Services files. When Torres and his lawyer contested this action, the Supreme Court of Massachusetts ruled that this disclosure of information about Torres amounted to “an unwarranted invasion of his privacy” (“Privacy and State Records,” 1984). The attorney general was wrong to assume that you give up your rights when you sue the state (“Privacy and State Records,” 1984).
Since the shooting massacre at Virginia Tech, all colleges have been on the alert to spot students who might pose a threat to other students. At Virginia Tech, a disturbed student gunman killed thirty-two people and committed suicide. There were several people who knew that student had problems, but because of privacy and other issues, they didn’t talk to others about it. Seung-Hui Cho, the Virginia Tech gunman, was ruled a danger to himself in a court hearing in 2005 that resulted from a roommate’s call to police after Cho mentioned suicide in an e-mail. He was held overnight at a mental health center off campus and was ordered into outpatient treatment. But he received no follow-up services, despite his sullen behavior and his violence-filled writings.
College officials had traditionally been reluctant to share information about students’ mental health for fear of violating privacy laws. But since Virginia Tech, some colleges have initiated programs to deal with potential threats. At the University of Kentucky, a committee of deans, administrators, camps police, and mental health officials began meeting regularly to discuss a watch list of troubled students and decide whether they need professional help or should be dismissed from college. Patricia Terrell, vice president of student affairs, who created the panel said, “If a student is a danger to himself or others, all the privacy concerns go out the windows” (McMurray, 2008).
Case Example
Aspiring artist Quentin Wanham never imagined that some yellow scribbles on his pants would land him in the principal’s office at Everett High School for questioning, with a police officer monitoring the interview. The 17-year-old senior was asked about a 6-inch-long logo, known as a graffiti tag, on his pants.
The trip to the office was equally alarming to Wanham’s horrified mother, who said she learned of it only afterward from her son. Lorraine Wanham is furious that school authorities did not call her before they questioned her son, and she worries that the answers he gave to school administrators could come back to haunt him. At 17, if charged with a crime, he could be tried as an adult.
Courts generally do not consider questioning by a school official to be the same as questioning by police. School officials, often in the presence of school-based law enforcement officials, question students without the protection of Miranda warnings.* (Lazar, 2008)
* A Miranda warning refers to the warning that a person who is arrested has a right to remain silent, and the right to a lawyer. The U.S. Supreme Court in 2010 watered it down by ruling that a person has to ask for a Miranda warning before it is given.
Virginia Tech has added a threat assessment team since the massacre there. Bryan Cloyd, a Virginia Tech accounting professor whose daughter Austin was killed in the rampage, welcomed the efforts to monitor troubled students, but stressed he doesn’t want to turn every campus into a “police state.” “We can’t afford to overreact,” Cloyd said, but “we also can’t afford to underreact” (McMurray, 2008).
Schools are also dealing with issues of student rights and invasion of privacy. There is a growing conflict between administrators’ goals of running safe schools and students’ legal rights. Civil libertarians say that with police officers routinely assigned to many schools, the legal boundaries between schools and law enforcement have blurred. Amy Reichbach, an attorney with the American Civil Liberties Union of Massachusetts, said there have been reports of arrests being made for “stupid stuff, like disorderly conduct.”
Computer Data and Privacy
The federal Privacy Act of 1974 says that people have a right to control information about themselves and to prevent its use without their consent “for purposes wholly unrelated to those for which it was collected” (Massachusetts Civil Liberties Union, 1983). Yet, in their eagerness to find fraud, some welfare departments are routinely doing computer matches with bank records and records of other benefit programs, such as Social Security, unemployment compensation, and so forth, without the consent of the recipients.
In Massachusetts, for example, the Department of Welfare in 1982 gave the Social Security numbers of all welfare recipients to 117 Massachusetts banks. When the department received the list of people whose assets were over the allowable limit, it immediately sent out benefit termination notices to all the people on the list, without first discussing it with the recipients. John Shattuck, the national legislative director of the American Civil Liberties Union, pointed out that this was a violation of the Fourth Amendment to the Constitution, which prohibits unreasonable searches and seizures. Computer matches of unrelated files have generally been “fishing expeditions” directed against large numbers of people on the chance that something will turn up (Massachusetts Civil Liberties Union, 1983). Further, Shattuck says, they violate the legal principle on which law is based in the United States, that a person is innocent until proven guilty. Many of the people on the list were in fact innocent of fraud.
Criminal Records and Privacy
Gelbspan says that a seven-year study of FBI criminal-history files gives us cause to worry about the use of records to invade our privacy. According to professor Kenneth Laudon, an expert in information systems at New York University who conducted the study, the persistently high error rate of these records makes them “a bigger blacklist than existed during the McCarthy period”* (Gelbspan, 1986, p. 15). Laudon warns that “today, there is a gargantuan, runaway system of records on individuals which is unregulated and unaccountable” (Gelbspan, 1986, p. 15).
* The McCarthy period refers to the years during the 1950s when Senator Joseph McCarthy conducted what some describe as a witch hunt against people whom he alleged to be Communists or Communist sympathizers.
Criminal history files have kept thousands of people from:
Employment
Housing
Loans
Insurance
Entrance to college
Becoming guardians or foster parents. (Massachusetts Alliance to Reform CORI, 2007)
Private and government employers who screen job applicants increasingly use records. Because the records are often inaccurate, every year several million Americans are unjustly denied jobs. The most common flaw involves records that list arrests but fail to distinguish between people convicted of crimes and those who were never brought to trial or who were acquitted. The impact of this falls hardest on black and Latino men and the poor because they experience a disproportionate number of arrests that are later dismissed. Representative Don Edwards of California, chairman of the House subcommittee on civil and constitutional rights, said, “We are only perpetuating their disadvantages when we use those arrests to deny them jobs” (Gelbspan, 1986, p. 15).
Criminal records are used for screening even menial jobs. According to Diane Gordon, a political science professor at the City University of New York, “You can’t even be a … janitor in a day care center if you have a criminal record of any kind” (Gelbspan, 1986, p. 15). How can ex-offenders stay out of jail if they can’t find work?
This issue is particularly important for human service workers. People can be denied employment if they have a criminal record, whether or not the record is accurate. They may work in an agency that will not hire anyone who has a criminal record. People who have been denied employment include:
A grandmother who has been caring for her grandchildren while their mother recovered from drug addiction, was discovered to have a criminal record. She had given the children excellent care, and the mother was not yet ready to take them back, but when the agency considered paying her as a foster parent, they discovered that she had a criminal record, and they removed the children. The grandmother’s “crime” was to possess some marijuana in her youth.
A black day care worker is stopped and arrested for DWB (“driving while black”) and taken to the police station. The police discover that his car registration has expired. The charges are eventually dismissed, but it is still on his record, and he loses his job.
Sandy, a homeless woman, was arrested when her boyfriend used her apartment to sell drugs to an undercover police officer. The judge in her case ruled that she was not involved in the drug transaction and therefore dismissed her case. The arrest, however, remains in her criminal record and has become the basis of her being denied housing and employment (Rosie’s Place Spring Newsletter, 2007).
Tina and her children lost their home due to a fire that left them homeless. Due to their income and housing situation, Tina’s family was eligible for public housing.
However, when the housing authority performed a CORI (Criminal Offense Record Information) check, she was denied housing due to a fifteen-year-old arrest for public drinking, a misdemeanor. In the years since her arrest, Tina had taken charge of her life by becoming sober and eventually working two jobs, yet her CORI continues to haunt her (Rosie’s Place Spring Newsletter, 2007).
The human service and social work professions are quite concerned about the criminal record checks because they sometimes prevent workers from doing good work. Schools of social work are debating how to handle these checks when they place students in a fieldwork agency.
Human service workers can join in efforts to reform the program. Some legal services agencies are helping people to correct their criminal records, and some states have reform movements to get their legislators to change the system.
Client Access to Records
In order to protect privacy, people need to know what has been said about them and have the opportunity to correct misinformation. Clients of human service agencies sometimes ask to read their records. Some states have privacy laws regulating this. The Privacy Act of 1974 and the Family Educational Rights and Privacy Act (Buckley Amendment) are the two main federal privacy laws.
The Privacy Act of 1974 gives certain rights of privacy to clients of federal programs, particularly the right to read and copy one’s own record and to insist that it be corrected or updated if its accuracy is questionable. The client must give consent for the record to be used for any purpose other than that for which it was specifically compiled. The heaviest public demands for information have been made of the CIA, FBI, and Treasury Department. Federal social service agencies, such as the Veterans Administration (VA), are also subject to the Privacy Act.
When a program is partially or totally federally funded, as with Medicaid and the Title XX social services programs, clients who have appealed an agency action and have a scheduled hearing have a right to examine their case files before the hearing. The Privacy Act provisions for client access and correction cover any federally administered social service program, such as the Supplemental Security Income program.
Open Access to Record Keeping
Some professional organizations, including the National Association of Social Workers (NASW), favor open access to records, but there is debate about this within all the human service fields. Our own position is that an open-record policy encourages honesty between worker and client. That makes for a trusting relationship. We like this guideline that one author offers:
Pretend that your client is sitting beside you reading everything as you write in his record. Consider consciously what should and should not be documented, and figure out the most effective way of wording what has to be said. Be aware of things that might upset the consumer, but that must be recorded, and be prepared to deal with your client’s reaction. (Wilson, 1980, p. 197)
Privacy for Welfare Recipients
When people have been stigmatized and treated in a demeaning manner, they are also likely to have their privacy invaded; all of these things erode peoples’ pride. Welfare applications, for example, ask detailed personal questions to decide if the applicant is eligible. The federal–state Parent Locator Service (PLS) of the Child Support Enforcement Program has been especially prone to use “police state” tactics in its zeal to track down fathers who don’t pay child support:
In some states PLS paternity investigations have required women to complete questionnaires revealing all of their sexual relationships, including dates and places and the names of witnesses, and to take polygraph [lie detector] tests. (Hayden & Novik, 1980, pp. 68–69)
When people were examined for their suitability for workfare in New York City, interviews with recipients with psychological problems were conducted in public spaces and not by doctors. Recipients were not given the results of their exams unless they specifically requested them. Inside the waiting room, “waits are long, tempers short. People are moved in bunches by security guards through the crowds, off to have their blood drawn. One morning, the receptionist was observed openly mocking Spanish speakers” (Sexton, 1997, p. 17).
The privacy of welfare recipients in Michigan was invaded by mandatory drug testing of all state welfare benefit applicants. Michigan is the only state in the nation to institute a policy of mandatory drug testing of welfare recipients, although the 1996 Welfare Reform Act authorized (but did not require) states to impose mandatory drug testing as a prerequisite to receiving welfare assistance. This policy was opposed by physicians, social workers, public health workers, and substance abuse treatment professionals, who filed an amicus curiae brief with the U.S. Court of Appeals in January 2001. The brief argued that mandatory drug testing is a marked deterrent on the willingness of individuals, particularly pregnant and parenting women, to access essential medical and social services (Vallianatos, 2001a).
The brief stated that this invasion of privacy was not justified by any special need to protect public safety. It identified other shortcomings of the policy:
The use of drug testing is narrow in scope and fails to detect obstacles to employment and problematic family relationships.
Drug testing does not detect child abuse or neglect.
Suspicionless drug testing erodes the trust between welfare recipients and benefit workers—such as by promoting the fear that drug testing will result in removal of children from the home (Vallianatos, 2001a).
A federal appeals court upheld the Michigan program in 2002, but in 2003, the ACLU reached a settlement with the Family Independence Agency of Michigan which states that the FIA can now require drug testing of welfare recipients only where there is a reasonable suspicion that the recipient is using drugs (American Civil Liberties Union, 2003).
In 2009, some Republicans in the Michigan state legislature put forward a proposal to do random drug testing for those who receive food and cash assistance, making college students who apply for a card show proof they can’t be claimed as someone’s dependent, and adding photo identification to the cards. Democratic Rep. Robert Dean said those bills are “partly election-year posturing that sounds good to voters,” and some people cautioned those stiffer requirements could hurt those in need of help (Scott, 2010).
Privacy in a Time of War
As we write, there are both domestic wars and a foreign war in progress. Both are affecting our right to privacy. Domestically, there is a war over the legal right to have an abortion. The Bush administration claimed in legal proceedings that it does not believe that there is any legal protection for the confidentiality of the doctor–patient relationship.
In 2004, the Justice Department demanded to subpoena the records of patients who had received abortion care at a Chicago hospital. A district court judge denied the Justice Department’s demand to subpoena the records.
Shortly after September 11, the Justice Department submitted to Congress a law dubbed the “USA Patriot Act,” an acronym for “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism.” It was rushed through Congress in several days, no hearings were held, and it went largely unread. The Patriot Act contains provisions that increase the ability of federal officers of the executive branch to enter and search a person’s house, to survey private medical records, business records, library records, and educational records, and to monitor telephone, e-mail, and Internet use. It struck most heavily against noncitizens. It permitted the incarceration of noncitizens for seven days without charge, and for six-month periods indefinitely without access to counsel if the attorney general determines release would endanger either the country or individual persons. The Patriot Act imperiled democracy by invading people’s privacy and promoting governmental secrecy.
In 2007, a federal judge in Oregon ruled that crucial parts of the Patriot Act were not constitutional because they allowed federal surveillance and searches of Americans without demonstrating probable cause. Shortly after that, however, President Obama asked to “make a slight change in a law to make clear that we have the right to see the names of anyone’s e-mail correspondent and their Web browsing history without the messy complication of asking a judge for permission.” A New York Times editorial said, “Yet the change he asked for was not slight, but would allow huge numbers of electronic communications to be examined with no judicial oversight” (New York Times, 2010).
The Patriot Act was set to expire in February 2011. The White House said that it “would strongly prefer” an extension until December 2013, noting that the longer timeline “provides the necessary certainty and predictability” that law enforcement agencies require while at the same time ensuring congressional oversight by maintaining a sunset (Sommez, F., 2011). As we go to press, both the House and Senate are working on proposals that would permanently extend three provisions of the bill or extend them through 2013.
Due Process
Due process means that, under the Fifth and Fourteenth Amendments to the U.S. Constitution, individuals are entitled to “due process of law”—including notice of the charge, an open trial, and right to counsel—before they can be deprived by the government of life, liberty, or property. In recent years, due-process protection has been extended to include some social agency practices. This was done to curb “the broad discretion available to officials and employees of public agencies and institutions and the arbitrary or illegal acts that have sometimes resulted.” (Dickson, 1976, p. 274)
due process
Procedural mechanisms that secure or protect a person’s legal rights.
If someone does something to you that you think is unfair, you naturally want to find out why, give your side, and rectify the wrong. You may want others to support you—perhaps a lawyer. Clients of human service agencies want the same. They often disagree with agency policy and workers’ actions. They need some protection against arbitrary decisions.
Full and Partial Due Process
There can be either full or partial due-process procedures. In situations in which a person might be seriously damaged by a decision, full due-process proceedings are usually allowed. These include representation by a lawyer, the right to present evidence and witnesses, the right to cross-examine witnesses, the right to a written statement of findings, and the right to a trial by judge and/or jury.
When there is less potential harm to an individual, or when a full-blown judicial hearing would be costly, laws provide partial due process. Generally they grant an administrative hearing and notice of charges and perhaps assistance in preparing and presenting the case (Dickson, 1976).
Most human service organizations give partial due process in a dispute with a client. Clients generally have a right to appeal an agency decision, and the agency holds an administrative hearing before an impartial examiner. Agencies sometimes allow legal assistance or an advocate from another human service organization, an advocacy support group, or even a well-informed friend. One of the authors of this book, (Mandell), does outreach at a Boston welfare office to help clients negotiate the bureaucracy and to protect their rights.
Due Process in Human Service Organizations
Clients of most human service organizations had few legal rights to appeal an agency decision before 1970. In that year, the U.S. Supreme Court decided, in Goldberg v. Kelly, that the due-process amendments of the Constitution applied to welfare hearings. Eventually the same principles were applied to schools, prisons, parole proceedings, Title XX (federally financed) social services, mental hospitals and institutions for the mentally retarded, the physically disabled, juvenile delinquents, and other service consumers.
Soon after the Goldberg ruling, there was a sharp rise in administrative hearings. Many people who did not agree with this expansion of entitlements began to attack those procedures, saying they were going too far. There were demands for change, and certain due-process procedures were made less stringent. Welfare hearings were made more informal, and in the 1976 case Mathews v. Eldridge, the Supreme Court allowed disability benefits to be cut off before a hearing, although the Goldberg v. Kelly decision had stipulated that a hearing be held before adverse action was taken.
The Personal Responsibility and Work Opportunity Act of 1996, which began the Temporary Assistance to Needy Families (TANF) program, ended entitlement to welfare, and clients no longer had the due-process rights that they had when it was an entitlement. Welfare departments often use arbitrary means of denying TANF to clients, and clients often had no recourse to an appeal process. A number of states have “no entitlement” language in their TANF statutes. However, in 1999 a Colorado state court ruled that due process applies to TANF benefits despite the “no entitlement” language. The court challenged sanction notices as inadequate and in violation of federal and state due-process requirement. The court ruled that the plaintiffs have a property interest to which due process applies because under the state’s welfare program benefits must be provided to those who meet the state’s requirements, and does not allow unfettered agency discretion in determining who gets benefits (National Center for Law and Economic Justice, 2010).
In the Supplemental Security Income and Social Security Disability Insurance programs, the Social Security Administration often denies that a person is disabled. In a large number of such cases, an administrative law judge grants disability benefits to clients who appeal (Heller, 1981).
It is easier to appeal a decision in some agencies than in others. One person standing alone is always at a disadvantage when confronting an institution, but there are even more obstacles when that person lives in the institution and depends on it for food, clothing, shelter, and care (Handler, 1979).
Although children gained some due-process rights in the Gault case, they do not have the right to refuse institutionalization against their parents’ wishes. The Supreme Court decided in the 1979 case Parham v. J. L. and J. R. that parents have the right to institutionalize their children without the children’s consent. Justice Brennan, one of three dissenters, argued, “It is a blind assumption that parents act in their child’s best interests when making commitment decisions” (Frank, 1980, p. 379). Should parents be given full control over their children? Until what age? Under what circumstances?
14.5 Helping Clients Get their Legal Rights
During the 1960s and early 1970s, clients’ rights were greatly expanded through the organizing of grassroots groups, including:
The Welfare Rights Organization
The Mental Patients’ Liberation Front
Feminist health collectives
Children’s rights advocates
Although the rights they gained still don’t necessarily fulfill all their needs, clients are slightly less powerless. In recent years, however, the government has been whittling down those gains. Federal legislation has cut out or weakened client-participation provisions that gave social service consumers a way to monitor and change programs that affected them.
Title I of the Elementary and Secondary Education Act, which provides enriched resources for educationally disadvantaged children, used to give parents a share in the schools’ decision making. But recent legislation has weakened their role and only gives them a watered-down advisory role. Title XX of the Social Security Act, which provides for social services, has also weakened its consumer-participation provisions. Class-action suits, which represent an entire class of clients rather than just one individual, have been severely curtailed.
Due-process rights were significantly eroded in 1996 by both the Immigration Act and the Personal Responsibility Act. Immigrants who are deported or imprisoned have no right of appeal, and recipients of TANF are not guaranteed a right of appeal against unfavorable decisions by the federal law, although states may still allow it.
Strategies
Human service workers, on the frontlines with clients, must devise ever more ingenious strategies to help them secure their rights. Following is a description of some of these strategies:
Human service workers need to be fully informed about their clients’ legal rights, and they need to clearly inform their clients. Reciting clients’ rights at the beginning of your working relationship is rarely enough. Clients are under stress when applying for benefits or services. They might not hear or understand your full meaning. They frequently need to be told about their rights again, in other contexts and with fresh emphasis.
Some advocacy groups publish booklets that spell out the rights of their constituents in clear, easy-to-understand language. If none exists in your area, consider helping your clients to write one.*
* Survivors, Inc. (www.survivorsinc.org), a welfare rights group in Massachusetts, publishes a newspaper that includes a section called “Survival Tips,” which gives information about benefits and rights.
Legal services groups sometimes publish manuals, and welfare rights activists in several states are publishing newspapers to inform people of their rights. There are also nationwide advocacy groups that publish useful information about legislation and people’s rights.**
** In the area of children’s services, the Children’s Defense Fund (www.chidrensdefense.org) publishes CDF Reports. The Gray Panthers (http://www.graypanthers.org) have been progressive activists in the field of aging and social justice since the 1960s. (This is actually an intergenerational organization.) The Older Women’s League (OWL—http://www.owl-national.org) focuses on social justice issues affecting older women. Food Research and Action Center (http://www.frac.org) publishes information on food programs, including food stamps and school breakfast and lunch programs. The American Civil Liberties Union (ACLU—http://www.aclu.org) defends people and organizations against various kinds of injustice. The National Center for Law and Economic Justice (http://www.nclej.org—formerly the Welfare Law Center) focuses on economic justice for low-income families. Legal Momentum (www.egalmomentum.org) is sponsored by the Women’s Legal Defense and Education Fund. They focus on women’s poverty, immigrant women’s rights, reproductive rights, the social safety net, and other women’s issues.
Even if you are convinced that you are correct in denying a particular benefit, you must remember that the client has the right to appeal a worker’s decision. A conscientious worker reminds the client of that right. Perhaps new evidence will come to light. Perhaps you made a mistake. An appeal is an opportunity to make sure a decision has been fair. If another agency has denied benefits to the client, the primary worker might investigate that denial, urging the client to appeal if there is a shadow of a doubt about the decision. The client may need help from a lawyer or an advocate to prepare or pursue the appeal. An updated resource file of legal services, advocates, and consumer groups is invaluable.
The worker should encourage clients to learn as much as they can about their rights. There are never enough low-cost legal services, so people will often need to defend themselves. Find out if there is a relevant self-help group that your clients can join. Welfare recipients, mental patients, adoptees, birth parents, adoptive families, divorced fathers, battered wives, people who are disabled, nursing-home residents, prisoners, families and friends of prisoners, and many others have advocacy groups that go to bat for clients.
Human service workers can help in due-process hearings by interviewing participants, collecting evidence, and helping in the preparation of cases. They also serve as expert witnesses, testifying in court on the basis of their specialized knowledge or experience in the field. If, for example, there is a question about whether a specific patient can manage his or her life outside the hospital, a worker in a community residence for the mentally ill could compare that patient with the residents he or she works with, establishing the likelihood of success or failure.
expert witness
A person who is especially knowledgeable in a particular field and who is asked to give testimony based on that knowledge in a court trial.
Welfare rights advocates often advise welfare recipients to take someone with them to all their interviews at the welfare office. A welfare recipient should take along a friend or advocate to lend support and to ensure fair treatment by the welfare worker.
Workers who believe that an agency practice is harmful to a client must decide whether to challenge the agency or “go along to get along.” Often a professional organization will support the worker in challenging the agency. For example, the NASW gave a Whistleblowers Award and some legal assistance to a social worker who sued the U.S. Public Health Service (PHS). The worker, Donald Soeken, was forced to retire from PHS due to what he described as substantial animosity from his supervisors after he testified on behalf of a patient’s family that the patient at St. Elizabeth Hospital was not treated in a timely fashion after the diagnosis of cancer (“Two Cases Given Legal Aid Grants,” 2001).
In an innovative program called the Medical–Legal Partnership, lawyers have teamed up with doctors to help solve clients’ problems. Dr. Barry Zuckerman, head of Boston Medical Center’s pediatric department, started the program in 1993. It is now a national phenomenon, used in nearly 200 hospitals and clinics, with fifteen participating law firms. The program first started in pediatrics, but it has expanded into cancer care and geriatrics, areas that involve extremely vulnerable patients.
Human service workers in a training session about legal issues and agency regulations.
For instance, cancer patients are legally entitled to less strenuous jobs when they are receiving and recuperating from treatment, but many are still forced to choose between their workday and their appointment for radiation…. Older people may be subject to abuse in nursing homes or by family members. (Weintraub, 2010)
The lawyers help in various ways. For example, lawyers connected to a hospital or clinic might write a letter encouraging a landlord to replace moldy carpeting that’s triggering asthma attacks, assist families in getting food stamps and other government benefits, and obtain power of attorney for the parents of a severely disabled child who is turning 18. Dr. Peter Loewinthan Binah, a pediatrician at Dorchester House (a community center), said he used to send letters to landlords or a school district on behalf of patients. But when the law firm of Ropes & Gray sends out a letter, it gets more attention. He said, “If you’re some landlord who isn’t fixing up your apartment and get a letter from Ropes & Gray stationery, you know that one of the major law firms in Boston is going to stick it to you if you don’t clean up.” (Weintraub, p. 8)
14.6 Some Current Legal Issues
There are some hotly contested issues in the human services that, although they do not apply equally to all workers, have wide-ranging implications and should be thought about. These include the right to treatment, the right to treatment or education in the least restrictive setting, and the right to refuse treatment.
right to treatment
Legal assurance that a person who is placed in an institution that purports to give treatment does, in fact, receive treatment.
least restrictive setting
The type of treatment and location that provide the greatest amount of freedom to a client (who often has a specific disability).
right to refuse treatment
Legal protection granted to a person who does not want treatment that is prescribed by professionals.
To help you visualize how a human service worker might be called on to deal with some of these issues, we present an interview with Donald Boucher, who worked in a mental hospital for adolescents while completing his undergraduate degree in social work.
Interview Donald Boucher, Mental Health Worker
Donald Boucher has worked as a mental health counselor at a private psychiatric hospital that has a seventeen-bed co-ed treatment program for youth ages 12 to 19 years. They stay from fourteen days to five or six months. The policies of the program are strict, based on firm limit and goal setting to modify behavior.
Donald’s job was to help with the scheduled daily activities, to maintain the safety of the clients, and to enforce the rules. He believes that those rules are sometimes too strict and actually prevent genuine treatment. On two occasions, parents protested hospital practices because they believed that the treatment was harmful to their children. Donald describes these two situations:
A fourteen-year-old girl had a severe eating disorder called bulimia. She would vomit in front of staff and patients, sometimes at the dinner table. Because of her behavior, the other patients didn’t want to be around her, and the staff was also repulsed by her actions.
The girl was placed in isolation in her room, with no contact with other patients and limited staff contact. She was not allowed to participate in group counseling sessions with her peers. She wasn’t allowed to leave her room and had no individual counseling sessions while in isolation. She was punished in the hope that her negative behavior would be extinguished. Instead, she became more and more detached. She was kept isolated for about four months.
Her mother was outraged when she learned what was going on. She told the hospital that her daughter desperately needed to learn socialization skills, but instead she was isolated and ignored. She wasn’t getting treatment she needed to overcome her illness.
The mother sent a letter to her hometown newspaper, and it was published. She also sent copies of the letter to politicians and others who she thought would be shocked to find out how the hospital is run. The newspaper called the hospital a “snake pit.” This prompted an investigation, which resulted in some improvement.
The second case concerned a teenage girl who would behave violently even when no one provoked her. Once, for example, she began kicking a staff person in the head for no apparent reason. He just happened to be near her when she had this outburst. At other times, she was calm, rational, and very pleasant.
At this hospital, when clients behave positively, they earn more privileges. They climb a ladder of steps of increased privileges and freedoms, such as being able to go for a walk outside around the grounds. This particular client had climbed to a very high level. She was doing very well with her positive behavior. However, one act changed all this for her.
When the clients aren’t actively involved in counseling sessions, they have to go to their rooms. They are not allowed to socialize with other clients outside supervised group sessions. One day this client, out of boredom, sat in the doorway of her room and was carrying on a conversation across the hall with another client. A staff person caught her doing this, reminded her of the rules, and told her to go inside her room and stop talking. Angry, she refused to move. She was then physically carried into her room. She kicked and screamed. She was then put in restraints and stripped of all the privileges it had taken her so long to earn.
Her family, who were very involved in her recovery, were upset by the punishment she received for such a small infraction of the rules. They wrote letters and made complaints, which resulted in an investigation.
One of the positive changes that came about as a result of both families’ complaints was the creation of a common room where the clients can socialize and participate in recreational activities instead of staying isolated in their rooms. Also, the entire program became more humane, with less harsh punishment for minor infractions. Donald feels that the changes were a step in the right direction.
Right to Adequate Treatment
The patients’ rights movement of the 1960s and 1970s asserted that mental hospitals and institutions for the retarded were more like prisons than hospitals. Patients, ex-patients, and their advocates turned to the courts for relief. The first “right to treatment” case, Wyatt v. Stickney, was tried in Alabama in 1971. The court ordered the state social service officials to provide a specified quality of treatment for institutionalized mentally retarded people. The court argued that when a person is involuntarily committed without the same type of due process given even to criminals, that person has a constitutional right to receive adequate treatment.
A 1974 Florida decision, Donaldson v. O’Connor, asserted that if a person was dangerous, he or she could be committed involuntarily. But the state had a responsibility to give that person adequate treatment. Some other states followed suit, prohibiting involuntary commitment to a mental institution unless the person is a clear danger to self or others.
On June 18, 1982, the U.S. Supreme Court made a decision in Youngberg v. Romeo that established, for the first time, constitutional rights for people committed to institutions for the mentally retarded. It guaranteed a minimum level of training and development (Barbash, 1982).
The parents who protested the treatment their daughters received in the hospital where Donald Boucher worked probably knew they had a right to demand adequate treatment for their children. Their protest techniques succeeded in making the hospital more responsive, so they didn’t have to go to court. The hospital knew that the parents had a legal basis for a suit if they chose that route. Legal suits that establish precedents make it easier for people to bring about change without having to resort to costly and time-consuming suits.
Right to Treatment in the Least Restrictive Setting
The right to be treated in the least restrictive setting means that the conditions should allow the most possible freedom. Implicit in the right to treatment is the constitutional issue of whether the state has the right to force treatment on people. The Fifth and Fourteenth Amendments to the Constitution specify that a citizen’s liberty shall not be deprived except in accord with due process of law. When the state decides to provide a service for a particular group of disturbed or disturbing citizens, it must do so in a manner that restricts their basic liberties as little as possible.
In deciding what treatment to use, an agency and its workers must consider which treatment will do the least to restrict the client’s full growth. Courts have applied this concept to residential mental health and mental retardation facilities, juvenile institutions, and educational facilities in the Education for All Handicapped Children Act. Perhaps you sat next to a pupil with a learning disability or physical impairment. It is this act that gave the student the right to occupy that seat.
The Education for All Handicapped Children Act requires that all children be “mainstreamed” into regular classrooms whenever that is possible. Mainstreaming means that schools must make every effort to put special-needs students in as normal a classroom setting as possible. Many hard-fought battles have raged between parents and their advocates and school systems, arguing about the definition of “the best setting” for a particular child. Teachers who aren’t used to teaching children with disabilities have had to develop new skills. States and school systems have spent a great deal of money developing the facilities and expertise to incorporate children with special needs into public schools.
mainstreaming
Putting people who have emotional or physical disabilities into the mainstream of society as much as possible. The Education for All Handicapped Children Act requires that all children be taught in regular schools and classrooms whenever possible.
The Supreme Court ruled in 1999, in what is called the “Olmstead decision,” that states may be violating the Americans with Disabilities Act if they provide care to people with disabilities in an institutional setting when they could be appropriately served in a home or community-based setting. This decision was made in regard to two women with developmental disabilities and mental illness who were residents of a psychiatric hospital, but it has been interpreted to extend to people with physical as well as mental disabilities, to those in nursing homes and other institutional settings in addition to psychiatric hospitals, and to those who live in the community and are at risk for institutionalization (General Accounting Office, 2001).
Right to Refuse Treatment
Efforts to force treatment on clients are problematic. Can the state insist on counseling as a condition for obtaining a divorce or retaining custody of a child, even though counseling requires trust and a readiness to change? There will be many court cases before this issue is resolved—if it ever is.
Mental patients have challenged the states’ right to commit them to an institution and employ psychosurgery, shock therapy, aversion therapy, seclusion, restraints, drug therapy, or behavioral modifications that withhold food and privileges. Courts consider whether the patient was legally competent to be involved in a treatment decision, and if so, whether the institution obtained the patient’s informed consent. Courts also consider whether the treatment is experimental or traditional and how intrusive and potentially dangerous it is. Psychosurgery, aversion therapy, and shock therapy, for example, are considered much riskier than other behavioral strategies.
The Importance of Written Plans
Written documentation of a treatment plan is often required. The Education for All Handicapped Children Act is very specific about such plans. Also, the Developmental Disabilities and Rights Act requires program plans for institutions and for individuals in community programs that receive federal funds. Whether or not law requires a written plan, it is helpful to have one because it ensures continuity of service (Burgdorf & Burgdorf, 1977).
Summary
Many human service workers are unaware of their legal obligations. Human service training programs have often omitted such issues or have treated them superficially.
Federal laws apply equally to all states. Other laws vary from one state to another. Because laws change frequently, a human service worker needs to keep up-to-date on changes.
Laws are a resource; many human service programs were created by laws. In order to help clients obtain their entitlements, workers need to understand these laws.
After laws have been passed, a government agency draws up the regulations, which are the bureaucratic procedures that put the law into practice.
Some regulations are so restrictive that they make life very difficult for clients.
Some programs are governed by several government jurisdictions, and clients often get a bureaucratic runaround.
Some regulations are worded ambiguously, either intentionally or because bureaucrats are unable to write clear English. If clients do not understand their rights, they are not likely to claim the rights.
People enmeshed in the legal system are often stigmatized. Human service workers need to combat this stigma.
There are some laws that every worker needs to know. These include laws concerning confidentiality, privileged communication, privacy, and due process.
In order to protect privacy, clients need to know what is said about them in records so they can correct the records if they want to.
Agencies comply with privacy laws to varying degrees. Those that are covered by federal privacy laws are more likely to allow open access to records, but they do not always comply with the law or inform clients of their right to read their records.
Open access to records causes workers to be more careful in their recording. There are pros and cons to an open-access policy. The authors favor open access.
Welfare recipients have few legal guarantees of privacy. The Parent Locator Service is particularly intrusive.
Privileged communication protects the confidences of the client–worker relationship in some cases, but it is not complete protection, nor is it extended to all professions in all states. The privilege belongs to the client, not to the worker.
The Patriot Act, passed shortly after 9/11, imperiled democracy by invading people’s privacy and promoting governmental secrecy. President Obama asked for a change in the law that would allow the government to monitor people’s web browsing.
Due process assures a client the right to disagree with a worker’s decision. Most clients of human service agencies are granted only partial due-process procedures.
Human service workers should help clients appeal adverse decisions, which might be reversed on appeal.
Federal legislation is weakening or eliminating provisions that allow clients decision-making power in federal programs; therefore, self-help advocacy groups are increasingly important.
Workers should learn about clients’ legal rights and inform clients about them.
Current legal issues that human service workers should be aware of include the right to obtain treatment, the right to treatment or education in the least restrictive setting, and the right to refuse treatment.
Written plans are often required by law, as is client involvement in writing them.
Criminal records frequently contain errors that make it impossible for people to get jobs and housing.
Discussion Questions
Should parents be given full control over their children? If so, until what age? Under what circumstances?
What are the pros and cons of allowing clients to read their own records?
The state makes many intrusions into the privacy of welfare recipients but very few into the lives of children and their parents who receive Social Security. Why do you think this is? Do you think the state has the right to investigate the personal behavior of welfare recipients?
People with criminal records can be kept out of public housing and many kinds of jobs. They can also be prevented from voting. What do you think of this?
Web Resources for Further Study
National Women’s Law Center
http://www.nwlc.org
A staff of nearly sixty advances the issues that cut to the core of women’s lives in education, employment, family and economic security, and health and reproductive rights—with special attention given to the needs of low-income women and their families.
Legal Momentum
www.legalmomentum.org
Legal Momentum is the nation’s oldest legal defense and education fund dedicated to advancing the rights of all women and girls. Over the past forty years, Legal Momentum has made historic contributions through litigation and public policy advocacy to advance economic and personal security for women.
Center for Law and Social Policy (CLASP)
www.clasp.org
CLASP seeks to improve the lives of low-income people. It develops and advocates for federal, state, and local policies to strengthen families and create pathways to education and work. Through careful research and analysis and effective advocacy, CLASP develops and promotes new ideas, mobilizes others, and directly assists governments and advocates to put in place successful strategies that deliver results that matter to people across America.
National Center for Law and Economic Justice
www.nclej.org
For the past forty-five years, the Center has led the way nationally in promoting economic justice, fairness and opportunity for those in need; securing systemic reform in the delivery of income support and related human services; and safe-guarding important legal and constitutional rights. The Center uses a coordinated strategy of impact litigation, policy analysis and advocacy, and support for low-income grassroots groups to: uphold the right to fair treatment; protect the civil rights of low-income people; and support community empowerment.
Find Law for the Public
http://consumer.pub.findlaw.com
Find Law for the Public offers extensive plain-English legal information, such as user-friendly articles, guides, forms, and FAQ pages to help people and businesses understand and deal with legal issues. Its resources include West Legal Directory, the Internet’s largest directory of lawyers and legal professionals, as well as many resources for lawyers.
