January 14, 2019

Healthcare Law and Human Trafficking: Concerns for Lawyers

Regina M. Paulose, Miami, FL

The Universal Declaration of Human Rights, adopted by the international community in 1948, sets out human rights that should be protected by all nations. In the Declaration, it specifically states that "no one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms."1 Sadly, modern slavery, which includes human trafficking, still exists throughout the world and is a billion dollar industry.2 Even with all of the advancements in law enforcement and technology, the United States saw an increase in reported cases in 2017, with the highest numbers of cases in California, Florida and Texas.3  Victims can be and are from any demographic range and can be people from the United States who are trafficked domestically, despite misconceptions that it is only people from other countries who are trafficked.

There are international, federal and state laws surrounding human trafficking.  These laws are increasing, as more is learned about the crime. International conventions relating to human trafficking date as far back as 1926, but the most notable one of recent years is the Palermo Protocol of 2000, which supplements the United Nations Convention against Transnational Organized Crime (UNTOC).4 The definition of "trafficking in persons" within the Palermo Protocol includes at a minimum sex, labor, and organ trafficking, and is broader than the U.S. definition within the Trafficking Victim's Protection Act (TVPA),5  which was enacted in 2000 to ensure the punishment of traffickers and protection of victims.6

Unfortunately, neither the language of the TVPA nor the Palermo Protocol  is  modeled among the various states that have enacted laws on the issue. “Some states include only sex trafficking and not labor trafficking, even though it is estimated that labor trafficking accounts for 78 percent of all trafficking globally. Some laws only address sex trafficking of minors. Others conflate smuggling and trafficking, which are in fact distinct crimes.”7

Anti-Trafficking in Healthcare

As more comes to light regarding the implications human trafficking as a public health issue, healthcare providers and associations have realized that victims and survivors of trafficking are likely to interact with a healthcare professional during captivity.8 Therefore, healthcare facilities are critical to prevention and response efforts in their local environments.  The movements which identify and prevent and/or disrupt the flow of trafficking, also known as “anti-trafficking” movements within the healthcare field, have grown tremendously over the last couple of years. The movement has given birth to various organizations such as the HEAL9 network, which provides continual education and training for providers through a "trauma informed" framework. Trauma informed care, in brief, means recognizing the trauma and its symptoms and the role that it has played in the patient's life.

In addition, hospitals across the United States have formed their own internal workgroups and programs to respond to human trafficking.10 The American Medical Association (AMA) has a policy that encourages physicians to be aware about human trafficking and identifies resources that can assist them with victims and/or survivors.11 In June 2018 the Joint Commission issued a "Quick Safety" document to raise awareness about human trafficking in the hospital setting and outline some safety procedures for clinical staff as well as victims and survivors.12 Some of the suggested safety procedures include reporting immediate danger to law enforcement, providing the patient with the National Human Trafficking Resource Center Hotline number, and utilizing on-site social workers.

ICD -10 Codes Related to Human Trafficking

With the implementation of anti-trafficking programs and policies gaining momentum within the healthcare community, it was not surprising that in a short amount of time healthcare providers and associations were able to urge the Centers for Disease Control and Prevention’s National Center for Health Statistics to update the 10th revision of the International Statistical Classification of Diseases and Related Health Problems (ICD -10) codes to include new human trafficking codes which will assist with data collection on the number of trafficking victims and/or survivors that are seen by providers.

According to the American Hospital Association (AHA), the purpose of the ICD 10 codes, which became effective in October 2018, will be to adequately diagnose, track, and plan for resources necessary to provide for treatment for trafficking victims and survivors.13  The AHA has listed the codes as follows:

ICD-10 Code                                                                         Title


T74.51*

Adult forced sexual exploitation, confirmed

T74.52*

Child sexual exploitation, confirmed

T74.61*

Adult forced labor exploitation, confirmed

T74.62*

Child forced labor exploitation, confirmed

T76.51*

Adult forced sexual exploitation, suspected

T76.52*

Child sexual exploitation, suspected

T76.61*

Adult forced labor exploitation, suspected

T76.62*

Child forced labor exploitation, suspected

Y07.6

Multiple perpetrators of maltreatment and neglect

Z04.81

Encounter for examination and observation of victim following forced sexual exploitation

Z04.82

Encounter for examination and observation of victim following forced labor exploitation

Z62.813

Personal history of forced labor or sexual exploitation in childhood

Z91.42

Personal history of forced labor or sexual exploitation

 

The new ICD-10 codes in effect mean that healthcare lawyers need to be more aware than ever of human trafficking in the healthcare setting, particularly now that the medical community is focusing in on how to address this issue. The main concerns focus on protocols, mandatory reporting, education and patient disclosures.

Protocols

Lawyers can assist in ensuring that healthcare facilities have proper protocols in place to address human trafficking and the unique risks and challenges facilities may encounter. These protocols should ensure that patient, provider, and clinical staff safety is taken into account and identifies the specific procedures to be implemented when a person comes in for treatment with the trafficking perpetrator.

Protocols could also be developed to assist providers in creating the relationships with suspected and/or actual victims or survivors that are necessary to minimize and prevent escalating violence towards victims. Trauma informed care can be an important element in these protocols.  It essentially encourages clinicians to approach patients with openness in understanding the individual patient's entire situation and to encourage the patient to identify all of his/her particular needs in order to promote healing, rather than just treating a physical wound.14

Mandatory Reporting

Hospital protocols should also include specific information regarding mandatory reporting laws, which vary by state.15 For example, while virtually all states require reporting of child abuse or mistreatment, not all states require reporting of suspected cases of adult trafficking. Some states are also more specific than others regarding reporting. For example, in Maryland a healthcare practitioner is mandated to report suspected cases of child trafficking.16 The state requires that child protective services or local law enforcement is called, in addition to following any other protocols that may be required of the practitioner at the hospital.

Clinical staff may not be aware that there are state laws that govern what must be reported and the specific mechanisms for reporting. In addition, these protocols should outline resources available to staff in cases where a situation does not trigger mandatory reporting and a victim or survivor does not want to report ongoing abuse. Ensuring that hospital protocols match state laws and that staff is aware of what they are legally obligated to do will be essential. It should be emphasized to staff that if they chose to also call the National Trafficking Hotline17 or provide that number to the victim and/or survivor that such action will not excuse their obligation to report under state law.18

It is also important to note that the Health Insurance Portability and Accountability Act Privacy Rule does allow for protected health information to be disclosed in certain situations. Among the situations outlined are child and adult abuse and/or neglect.19

Further, continued training and education on human trafficking will be extremely important so that victims and survivors are directed to the appropriate resources. For instance, Holy Cross Hospital in South Florida instituted a practice to disseminate medical research literature as it pertained to different provider groups, such as signs of human trafficking in the Emergency Room. Much of this literature can be found by subscribing to HEAL’s network.20

Mandatory Provider Education

 As states grow more attuned to human trafficking occurring in their localities, state legislatures or medical boards may increase or mandate new educational requirements for licensing. For example, in Florida nurses are now required to complete mandatory education on human trafficking.21 It is imperative that lawyers ensure that medical and other applicable staff are aware of these requirements and any changes, particularly because it may impact their licensure.

Inadvertent Disclosures of a Victim’s Status

As hospitals begin to use the new ICD-10 codes related to human trafficking, lawyers should  be aware of potential issues that intersect with the privacy of patient records.  Perpetrators of trafficking utilize control in all aspects of a trafficking victim's life. This may lead to medical records being disclosed to the trafficker if the patient has identified the trafficker as someone who is his/her guardian, contact, or a person authorized to receive the medical record. In addition, itemized bills (consistent with state price transparency laws) may be sent to the address where the trafficker has the victim kept in captivity, thereby alerting the trafficker to the fact that the hospital is aware of the victim's situation.

It is important that providers try to ensure that the person who has control over the patient records is the patient, as opposed to the trafficker.  Victims and/or survivors may not be in a position to identify that they are being trafficked, and more than likely are not going to understand what the ICD-10 codes are used for and why they need to be placed in the medical record. However, with a tiny bit of research on the internet, these codes can be quickly identified, and if the records are in the wrong hands, they could create a problem for the victim. The best way to ensure patient safety is to establish a relationship that promotes the interest and the safety of the patient first, through the trauma informed care model described above.

Conclusion

It is vital that healthcare lawyers learn about human trafficking, particularly given the prevalence of this crime within the United States.  There are several online training programs that lawyers can benefit from to learn the basics about human trafficking,23 in addition to publications by the American Bar Association.22 It is important to keep in mind that state and local bar associations also provide human trafficking legal education programs throughout the course of the year, particularly in states that have been particularly hard hit, such as California, Florida, and Texas.

Traffickers continue to benefit from piece meal approaches and the lack of knowledge that exists about human trafficking. Lawyers should be versed on this issue, particularly in light of the growing movement within the healthcare field to address it, and can be of great service to healthcare practitioners in assisting them with best practices and policies.

1

Universal Declaration of Human Rights, Article 4, available at http://www.un.org/en/universal-declaration-human-rights/.

2

See International Labour Organization, "Global Estimates of Modern Slavery" (2017), http://www.ilo.org/global/topics/forced-labour/statistics/lang--en/index.htm.

3

Allen Cone, "Report: Human Trafficking in U.S. rose 35.7 percent in one year" UPI, February 5, 2017, https://www.upi.com/Report-Human-trafficking-in-US-rose-357-percent-in-one-year/5571486328579/.

4

The UNTOC is a Convention that is specifically dedicated to cooperation among states to suppress and prevent organized crime. The supplemental protocols known as the “Palermo Protocols” are the international protocols that address human trafficking.  See "Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime" (2000),
http://www.ohchr.org/EN/ProfessionalInterest/Pages/ProtocolTraffickingInPersons.aspx. For more of a background  see Regina Menachery Paulose, “Beyond the Core: Incorporating Transnational Crimes into the Rome Statute” 21 Cardozo J. Int'l & Comp. L. 77 (2012-2013). 

5

Ibid at Article 3. For instance, the TVPA focuses on sex trafficking for commercial purposes and does not address organ trafficking. See 22 U.S. § 7102. The TVPA was the first comprehensive U.S. federal law to address trafficking in persons.

6

Victims of Trafficking and Violence Protection Act of 2000, Public Law No. 106-386 (2000).

7

American Bar Association, “The State of State Human–Trafficking Laws” The Judge’s Journal, January 31, 2013, https://www.americanbar.org/publications/judges_journal/2013/winter/the_state_of_state_humantrafficking_laws/.

8

See Dr. Hanni Stoklosa, Marti MacGibbon, and Dr. Joseph Stoklosa, "Human Trafficking, Mental Illness, and Addiction: Avoiding Diagnostic Overshadowing," American Medical Association Journal of Ethics, January 2017, available at https://journalofethics.ama-assn.org/article/human-trafficking-mental-illness-and-addiction-avoiding-diagnostic-overshadowing/2017-01.

9

HEAL stands for Health, Education, Advocacy, and Linkage. Resources and trainings are available on the HEAL network website: https://healtrafficking.org/ 

10

Kristen Jordan Shamus, "New Michigan shelter helps human trafficking survivors rebuild their lives," Detroit Free Press, December 12, 2017,  https://www.freep.com/story/news/2017/12/12/sex-human-trafficking-sanctum-house/901453001/?utm_source=dlvr.it&utm_medium=twitter.

11

Danielle Hahn Chaet, “AMA Code of Medical Ethics’ Opinions Related to Human Trafficking,” AMA Journal of Ethics, January 2017, https://journalofethics.ama-assn.org/article/ama-code-medical-ethics-opinions-related-human-trafficking/2017-01.

12

The Joint Commission, "Quick Safety" Issue 42, June 2018,  https://www.jointcommission.org/joint_commission_advisory_on_identifying_human_trafficking_victims_in_health_care/.

13

American Hospital Association, "ICD-10-CM Coding for Human Trafficking," available at https://www.aha.org/icd-10-cm-coding-human-trafficking-resources.

14

For a more in-depth discussion on trauma informed care in a hospital setting see Dr. Theodore Corbin, "Trauma Informed Care," National Network of Hospital Based Violence Intervention Programs,  http://nnhvip.org/trauma-informed-care-2/.

15

Abigail English, "Mandatory reporting of Human Trafficking: Potential Benefits and Risks of Harm," AMA Journal of Ethics, Policy Forum, January 2017, https://journalofethics.ama-assn.org/article/mandatory-reporting-human-trafficking-potential-benefits-and-risks-harm/2017-01.

16

See Maryland’s Resource for Mandated Reporters, https://www.reportabusemd.com/.

17

The National Human Trafficking Hotline is a 24- hour hotline that can be used as a resource for providers and/or victims/survivors of trafficking. The National Hotline has a specific confidentiality policy. The number is an excellent resource for providers who are unsure whether they have a human trafficking victim before them and/or need to provide more resources to a victim/survivor. The National Hotline can be called anonymously. For more information on the Hotline see https://www.acf.hhs.gov/otip/victim-assistance/national-human-trafficking-hotline.

18

U.S Department of Health and Human Services, “Human Trafficking and Health Professionals: Questions and Answers,” available at https://www.phe.gov/Preparedness/planning/abc/Pages/human-trafficking-faqs.aspx.

19

U.S. Department of Health and Human Services, “When does the Privacy Rule allow covered entities to disclose protected health information to law enforcement officials?” available at https://www.hhs.gov/hipaa/for-professionals/faq/505/what-does-the-privacy-rule-allow-covered-entities-to-disclose-to-law-enforcement-officials/index.html.

20

To join the HEAL network, see https://healtrafficking.org/.

21

Florida Board of Nursing, “Are nurses required to complete the new Human Trafficking continuing education course if they qualify for the CE exemption, as outlined in Section 464.013, FS?,” https://floridasnursing.gov/help-center/are-nurses-required-to-complete-the-new-human-trafficking-continuing-education-course-if-they-qualify-for-the-ce-exemption-as-outlined-in-section-464-013-fs/n.

22

Some examples of resources include Department of Homeland Security: https://www.dhs.gov/blue-campaign/awareness-training, Shared Hope International: https://sharedhope.org/what-we-do/prevent/training/, National Human Trafficking Hotline: https://humantraffickinghotline.org/nhtrc-hhs-online-trainings, and Heal Trafficking: https://healtrafficking.org/

23

The American Bar Association has a Human Trafficking Initiative which can be found at https://www.americanbar.org/groups/human_rights/projects/task_force_human_trafficking/.  Other legal resources can be found  in the  American Bar Association Task Force on Human Trafficking’s “Voice for Victims Lawyers Against Human Trafficking Tool Kit for Bar Associations,” available at https://www.americanbar.org/content/dam/aba/multimedia/trafficking_task_force/resources/TFHT_Toolkit/HumanTrafficking_Bar.authcheckdam.pdf.

Regina M. Paulose, Miami, FL.

International Criminal Law and Human Rights Attorney

Regina Paulose obtained her J.D. from Seattle University School of Law and her LLM in International Crime and Justice from the University of Torino/UNICRI. She has been a practicing attorney since 2004. She has presented at international conferences and has published law review articles concerning the Genocide, Crimes against Humanity,  and Transnational Organized Crime. She was the Chair for the Steering Committee of the United Kingdom Child Sex Abuse People’s Tribunal.  She is the Vice Chair of Programs for the International Refugee Law Committee for the American Bar Association and the Chair - Elect of the World Peace through Law Association of the Washington State Bar. She was the Co-Founder of the "STEP" healthcare clinic at Holy Cross Hospital, set up to address the holistic medical needs of victims and survivors of trafficking in South Florida, and is currently a panel member of the China Tribunal. She may be reached at reginapaulose@gmail.com.