by Kari Burns

In March of 2020, the U.S. Department of Health and Human Services Office of Inspector General issued a detailed report documenting HHS’s failure to coordinate a satisfactory response to the severe challenges posed by the zero-tolerance policy. A lack of interagency communication resulted in approximately 4,300[1]children, including young children and babies, receiving inadequate care and services, in addition to the abject trauma of being separated from parents. Characteristic of the current administration, warnings from staff went unheeded and an utter lack of centralized leadership and coordination put children and families at significant risk. The report, “Communication and Management Challenges Impeded HHS’s Response to the Zero-Tolerance Policy” relies on data collected from more than 45 facilities, interviews and written communication from senior HHS officials and staff, interviews with facility staff, case reviews, and over 5,000 documents obtained from HHS.

Interagency channels were not used to notify HHS of the policy in advance, resulting in a critical lack of preparedness. There was no official communication from the Department of Justice (DOJ) or the Department of Homeland Security (DHS)—HHS first learned of the spring 2018 policy from the media. Additionally, senior HHS officials ignored countless warnings from staff witnessing an increase in separated children. In fact, staff was warned against putting concerns in writing and criticized for doing so. This profound lack of communication and disregard of compelling evidence resulted in a serious shortage of beds, particularly for young children, and an inability to care for an especially vulnerable population. The transfer of children to appropriate care facilities was delayed past the 72-hour legal limit, and facilities were unprepared to care for children suffering from extreme trauma.

HHS took a supportive public stance toward the zero-tolerance policy in May 2018. Some senior HHS officials communicated that the zero-tolerance policy would serve as a deterrent to families attempting to immigrate in the first place. This official stance compromised the integrity of an institution that is meant to prioritize children’s wellbeing. The report states the agency “failed to prioritize and protect children’s interests”. Tension between DHS and HHS greatly limited the power of the organization meant to bear responsibility for the welfare of children. The fundamental purposes of these agencies are ideologically opposed, with Immigration and Customs Enforcement (ICE) and DHS often viewing HHS as obstructing law enforcement efforts.

There were profound hurdles to reunification efforts. Not only did DHS fail to communicate the separation policy to affected agencies, they themselves lacked the systems necessary to track families to ensure reunification. Consequently, reunification proved extremely difficult once the children reached HHS, who struggled to identify separated children. Usually, children entering the Unaccompanied Alien Children (UAC) Program have documents to identify relatives, but this was not the case with separated children, many of whom were too young to provide information for locating family members. The June 26, 2018 executive order halting family separations did not address reunification of families already separated.

The landmark case Ms. L vs. ICE helped streamline reunification efforts by easing restrictions on parental identification requirements. But the convoluted, overlapping policies from different court cases made it extremely difficult for care facilities to navigate the mercurial process. Additionally, the Office of Refugee Resettlement (ORR) relied on email communication to update facilities on policy changes, resulting in widespread confusion. One facility program director cited three or four policy changes in one day, none of which were archived in an easily accessible, searchable location.

One of the most arduous tasks was locating parents in DHS facilities and coordinating reunification. Due to lack of data and interagency coordination, facilities were forced to locate parents independently. Detention centers’ data systems were insufficient and out of date, so facilities resorted to calling them directly, and reported the primary obstacle was the detention center not answering their phone. In one case, a detention center database reflected the presence of a child’s father, but on arrival it was found he was not there. The child spent three weeks at the detention center without any family, before returning to ORR care to await sponsorship.

HHS policy requires the release of a child into the custody of a safe adult who has passed extensive background checks. Very often, DHS would list only “criminal history” in its reports on individuals, with no specific information, hindering the case manager’s process. The lack of sufficient or even accurate data from DHS resulted in extremely delayed reunification. In one case, a father was red-flagged for gang-related activity, upon which ORR sent numerous emails attempting to find more information. Ultimately, no gang-related background was found and the father was cleared to regain custody of his child, who at that point had spent 90 days in an ORR facility. Parents and their children were subject to different immigration court proceedings, resulting in parents being deported and children left in ORR care. Reunification with parents outside of the United States proved especially formidable.

HHS did make a concerted effort to improve operations, but the resulting procedures are heavily reliant on manual processes subject to error. OIG proposes the following recommendations: HHS must prioritize children’s interests, which should be reflected in policy, and staff concerns must be taken seriously. The agency should pursue formal agreements with DOJ and DHS to ensure they receive complete and appropriate information in order to make placement decisions. Communication to care-taking facilities ought to be streamlined, and policy changes must be archived in a searchable database. Finally, HHS should reduce its reliance on multi-step manual processes, which are inherently subject to error.

The report concludes that while HHS is not responsible for the zero-tolerance policy, they failed to respond in a way that upheld their mission as a humanitarian institution. The response from the Administration for Children and Families (ACF) to this report agrees with the recommendations, but did not provide specific details on how they would prioritize children’s interests. ACF posits there is no legal obligation for other federal agencies to comply, to which OIG suggests mechanisms to address non-compliance among agencies. ACF describes specific steps taken to streamline communication to care-provider facilities, and cites their commitment to improve their ability to track and identify separated children.

The debacle of the zero-tolerance policy and the botched response from HHS resulted in untold damage among families and caused immeasurable trauma to thousands of children. Although the policy has officially ended, the consequences are an everyday reality for many families. The failure to heed prudent warnings and an absence of leadership reflect greater circumstances that will continue to plague this country.

[1]The number of separated children is based on the federal district court case Ms. L vs. ICE, which put an end to the separation policy, but does not accurately reflect the number of children affected, due to insufficient data collection.

Karilea Burns got her Master’s in Literature from the University of Colorado at Denver. She studied social justice as an undergraduate, and is pursuing a career in social work with Boulder County Family and Child Services.