A Reddit poster asked: “Has anyone else’s workplace asked them to document client involvement with ICE protests?”‘
A Massachusetts listserv posted a few paragraphs beginning: “A psychologist in Utah reported that ICE showed up at his office demanding records for several pts.”
A California psychologist tweeted: “I heard from a professional colleague today who is also a practicing clinical psychologist that ICE came to their office and demanded patient records from their admin person who refused them. She told them they needed a court order, meaning a judicial order and not just their order and they were not happy and said they were coming back today.”
With these several reports, I tried to find someone to tell me on the record that they had actually had a request from ICE for patient records, and talk about it. But I couldn’t find anyone who would talk about this on the record with their name attached to this topic. I also did a few intense Web searches.
I am left thinking this: This might well be happening. And people believe that ICE might do this, even if they (and we) can’t document that this is happening in real time. Read on for more.
(If you have things to share, reach me by email at jeanne@clearhealthcosts.com or encrypted Signal 914-450-9499.)
Anonymous poster
The Reddit poster was initially not anonymous, but after s/he posted, s/he deleted her account and so became anonymous, though the thread remains.
S/he did amplify later in the thread about the demand for release of records: “I’m not doing it unless I am forced to, but my cooperation isn’t necessarily needed because of AI.” This suggests that s/he might be working at one of the platforms — Alma, Grow, Rula, Octave, Talkspace and similar — where AI notetakers are being offered to help in documentation after sessions are recorded. Also some big companies are said to require that therapists use AI. S/he refused to name who she works for.
Others on the thread suggested that she turn off AI, and she replied: “I am not permitted to turn it off. It is installed on the equipment used. Even if I found a way around it, others within the agency are going to feel pressured or required to use it. Hell, some of them may even gleefully report their neighbors for protesting ICE.”
These reports are circulating around the web, sparking responses like this one pointing out that the Health Insurance Portability and Accountability Act (HIPAA) still applies; privacy of medical records is the law of the land.
One reason people might find ICE requests for therapy records plausible: The federal government is known to be contracting with Palantir, the big data and security company, to create databases for use by Customs and Border Patrol, ICE and other enforcement agencies connected to the United States government.
Anybody reading the news is also aware that DOGE, the so-called government efficiency department that was once headed by Elon Musk, has spent a lot of time trying to collect data — from the Social Security system, from Medicare and Medicaid, and from other sources. (This Substack post lists a number of databases maintained by the government for surveillance purposes.)
So it’s not too big a leap to think that anyone creating such a database would be looking for other sources of information — including a database of healthcare data like what might be in the possession of healthcare providers like therapists. Or data from one of the mental health treatment platforms — Alma, Rula, Grow, Octave and others.
(The Employee Assistance Program provider Spring Health acquired Alma recently, fulfilling a prophecy that the platforms, many of them funded by private equity or venture capital or both, are looking for exits like the Spring Health sale, which would reward early investors.)
State listserv
One person we know from a state online psychological association community sent an email purporting to document a case of ICE requesting records, the one that was posted on the Massachusetts listserv:
“A psychologist in Utah reported that ICE showed up at his office demanding records for several pts. The psychologist was not there and his office manager said she could not release any records. They said they would return Monday,” the post said.
“APA legal staff advised that, consistent with HIPAA the provider is not obligated to release any pt information or answer any questions about any pt without a signed court order, warrant, or judicial summons(eg grand jury subpoena).
“An administrative warrant from ICE does not qualify to compel disclosure because those warrants are signed by ICE agents, not a judge.
“We are at a point that the unthinkable is now happening.”
When I followed up with him to ask for details — who and when and where — he wrote: “My info is reliable but 2nd hand so no more info available.” I’m not naming him because I’m not sure the person who forwarded his email was aware that I was going to see it and potentially write about it.
The California psychologist, Dr. Michelle Kalehzan, tweeted: “I heard from a professional colleague today who is also a practicing clinical psychologist that ICE came to their office and demanded patient records from their admin person who refused them. She told them they needed a court order, meaning a judicial order and not just their order and they were not happy and said they were coming back today. This is how dirty this administration is. They want to get psychotherapy notes and medical notes without the consent of the patient. We ethical doctors will not be complying. Come get me.”
She did not respond to email or X/Twitter requests for further information.
‘Doesn’t surprise me’
I asked Barbara Griswold, author of the blog “Navigating the Insurance Maze,” and the book of the same name, about the topic. She is a therapist who helps other therapists with various aspects of the business of a practice, especially insurance.
Has she heard of this? “Nope, but it doesn’t surprise me,” she wrote in an email.
What recommendations do you have for therapists who receive such a request?
“I can’t give legal advice,” she wrote. “But I would immediately be on the phone with the lawyers at my professional association (for me, the California Assn of Marriage and Family Therapists, who have about 10 lawyers on call on any workday) and then my malpractice carrier. Most malpractice carriers have attorneys available for consultation as part of your insurance.”
She amplified in a later email: “Since there are many types of record requests, it is wise to call an attorney or check with your malpractice carrier to help you discern the purpose of the request and how to respond. Therapists have the legal and ethical responsibility to keep records documenting sessions as well as treatment plans. Therapists may be asked by a client’s insurance company to provide records to defend the medical need for treatment, or simply to verify the quality of the records.
“Records may also be requested as part of a subpoena in a court case, or for a client’s disability application, and clients themselves may request their records. Requests for records are governed by HIPAA and state laws, depending on which is stricter, but in general these laws typically require the client’s consent to release any records. This release is typically part of a therapist’s intake paperwork when working with insurance, as it is necessary to have such a release when billing insurance.”
Platform ownership of records
This brings up another topic: If you’re a therapist working for a platform, who owns your records of patient treatment? That includes treatment plans, session notes, medical records and so on. If you’re a 1099 employee of a platform like Alma or Rula, your contract is likely to specify who owns the records — and it may not be only you. (If you have things to share, reach me by email at jeanne@clearhealthcosts.com or encrypted Signal 914-450-9499.)
I asked Griswold: In the case of the platforms, if a therapist is a 1099 employee of the platform, the platform then owns the records, so the platform could divulge in response to such a request, without the therapist’s approval is that correct?
She replied: “The platforms I interviewed (Alma, Headway, Grow) for my my article last year told me therapists had the option of the therapist keeping records in their Electronic Health Record, but didn’t require it (some probably do, and those platforms may require it now). They certainly incentivize it, as they want to have control, and some even do their own internal audits of provider files. So I do recommend that a therapist keep their notes separate from the platform’s EHR so they have control.
“Also, if they leave the platform, they have their notes to protect themselves in case of a complaint — otherwise when leaving they would have to download each note as a pdf, a major task. Some therapists write a note in their own EHR and then copy it into the platform’s EHR, but that seems like extra work, and still gives the platform control over the release.
“I know at least one platform I interviewed released records without the therapist’s permission for risk adjustment audits, so I would guess they would release for other requests. Bottom line: I wouldn’t put my notes in the hands of anyone else.” This is the first part of her two-part series on the platforms.
Threats and consequences
Adding to the general sense of apprehension are reports like the one from Minnesota in which a woman named Nicole Cleland who was observing ICE activities said her face was scanned by ICE enforcers.
Cleland told The New York Times that “three days after the encounter with the ICE agent, she received an email from the Department of Homeland Security saying her Global Entry and Transportation Security Administration travel privileges had been revoked. No explanation was provided.”
Whether this kind of action is widespread or not, it gives the impression that anyone doing anything to cross ICE and the Justice Department on any topic can experience dire consequences.
This, of course, is a way of cowing and intimidating people, to make them less inclined to do anything to oppose government actions, even such relatively innocent actions as observing ICE actions in Minneapolis. The result can be “obeying in advance,” or making people decide not to cross anything that looks like official policy for fear of punitive consequences. Timothy Snyder, the academic scholar of tyranny, speaks and writes about this idea frequently,
A.P.A. advice
I asked the American Psychological Association if it had any comment on ICE seeking records, and their spokesperson pointed me to these references on its site:
APF risk management webinar about records requests: Dated in September, this page uses this introduction: “Requests for health records are a routine part of health care—whether from the patient, parents of minors, or a third party. But there are circumstances a psychologist must consider before releasing the information. When you receive a request for records, what steps should you take before their release?
“This webinar will cover compliance with state and federal regulations, including HIPAA’s Right of Access. The speakers will explore scenarios involving confidentiality, patient information release, and handling special requests while emphasizing privacy, scope of practice, and efficient information management.”
APA/APA Services Response Center – data sharing between Medicaid and immigration officials. Dated in July, this begins: “Recent reports indicate that U.S. Immigration and Customs Enforcement (ICE) has been accessing personal health care data from individuals enrolled in the Medicaid program through a reported Memorandum of Understanding Between HHS/CMS and ICE. The use of personal health information (“PHI”) for immigration enforcement purposes could deter legal immigrant families and their communities from seeking necessary medical and mental health services. This could lead to a number of negative consequences, including a decline in overall health for American citizens and non-citizens alike and an increase in health disparities.”
The National Association of Social Workers in Minnesota published a page for “Resources for Communities Affected by Federal Violence.” Resources include legal references, “Support for Immigrants and Community Members Experiencing Food and Resource Insecurity Because They Fear Leaving Home,” “Organizations Supporting Legal Representation for our Immigrant Neighbors:” “Know Your Rights/Constitutional Observer Trainings, Information, and Opportunities:” “Mental Health Supports for Impacted Individuals/Communities:” “Hospital/Healthcare Specific Resources:” and others.
In California, the Redwood Empire Chapter of the Association of Marriage and Family Therapists set up a continuing education opportunity: “Support & Safety During Crisis: Treating Undocumented Families Facing ICE & Detention.”
The invitation said: “This introductory workshop will prepare clinicians with the knowledge and tools to support undocumented clients and families impacted by the threat of deportation. Recent research highlights the urgent need for such clinical awareness. Personally knowing a detained or deported person, particularly when the individual is a family member, is strongly associated with poorer mental health among U.S. citizens (Pinedo & Valdez, 2020). This webinar will provide clinicians with specific skills to assess and address the relational ruptures, attachment disruptions, and trauma responses that often accompany deportation-related family separation. Participants will learn how to integrate trauma-informed, culturally-sensitive, and systemic approaches in their work. Practical interventions, case examples, and strategies for navigating clinical and community-based challenges will be included.
Minnesota doctors have noted the disruptions to healthcare resulting from the ICE activity. A former Minnesota doctor wrote an opinion article with a similar message.
I asked the New York State Psychological Association for comment, but they didn’t respond to several queries.
What you can do
What can you do if ICE asks for your records? Do you need to give them up? What else do you need to think about?
As we understand it, if the records are subject to a request from the authorities, one needs to consider which authorities. Customs and Border Patrol, or ICE, can come ask for records, but there are strict rules about what you need to give up and when — is this an administrative request? A court order? From whom? Do you need to comply?
As Griswold notes, this is a good time to call a lawyer — and your local practice association: New York State Psychological Association, the California Association of Marriage and Family Therapists, maybe, or a national group, such as The American Psychological Association, etc.
If the records are your records, then a lawyer can tell you what your obligations are.
If your records are in the possession of a platform, you may not be able to say “no.”
Look at your contract and see what your obligations are, and who owns the records. Of course, you should have looked at the contract before you signed it — if you try to alter it retroactively, you may not succeed.
In any case, online and offline sources note that a session record need not say “client fears ICE action” or “client is demonstrating against ICE” but could say something much less specific.
One Reddit poster wrote: “Whenever political topics come up in session, all I put in my notes is ‘Ct reported feeling anxious due to recent events reported recently in the news. Due to the political nature of the topic, this portion of the session will not be recorded.'”
Another wrote: “My agency had a site-wide meeting about how to AVOID documenting potentially sensitive information like that moving forward. Immigration status, too.”
I asked Griswold: Are there ways of writing therapy notes that may be best practices under the circumstances?
“I have an article about this at https://theinsurancemaze.com/privacy/,” she wrote. The headline: “Are Your Session Notes Confidential in the Trump Era?” The lead: “I’ve been getting a lot of questions from therapists about an important topic that begs to be addressed: How does the recent political climate affect our documentation and our clients’ privacy?”
Griswold has years of experience here, and here’s what she wrote to us, separate from the article: “I don’t agree with many of the Reddit folks, who suggest you get super-vague. I do agree that I don’t necessarily need to document whether a client went to a protest or not or what the protest was for — it probably is not directly relevant to the treatment of the client’s diagnosis.”
(If you have things to share, reach me by email at jeanne@clearhealthcosts.com or encrypted Signal 914-450-9499.)
