December 14, 2023
Our Public Comment Warns HHS About Whistleblower Chilling in Proposed ORR Rule
WASHINGTON – In an effort to codify the decades old Flores Settlement Agreement, which serves as the governing document for the care of noncitizen children in government custody, in October of 2023 the U.S. Department of Health and Human Services (HHS) Administration of Children and Families (ACF) issued notice that the agency would establish regulations regarding the care of unaccompanied children in the custody of the Office of Refugee Resettlement (ORR).
Since 2021, we have represented multiple whistleblowers who have spoken out about concerns of poor conditions and mismanagement in ORR’s emergency operations for unaccompanied noncitizen children. These reports included lack of appropriate medical care, inadequate clothing and supplies, and children “lost” in ORR’s case management system, languishing for months in tent camps. Following our clients’ whistleblowing, the HHS Office of Inspector General conducted oversight investigations into HHS emergency operations at Fort Bliss in El Paso, Texas. The Inspector General’s findings included that mismanagement may have resulted in children being released to unsafe situations within the United States, and that there was a culture of chilling whistleblowers who raised concerns to HHS leadership. Earlier this year, reports surfaced that children who passed through ORR custody were found in dangerous situations of unlawful child labor; our organization has reported on the hazardous impact of weak whistleblower protections for noncitizens, particularly in the U.S. food production industry.
On December 4, 2023, we submitted a public comment on the proposed regulations. While the stated intent of the rule is to support the rights of noncitizen children, as written, the rule places gag orders on workers to block information from leaving ORR facilities, effectively making whistleblowing impossible. This regulation would therefore violate the whistleblower rights of federal government employees and contractors codified in the Whistleblower Protection Act, Whistleblower Protection Enhancement Act, and the “Enhancement of contractor protection from reprisal for disclosure of certain information” provision of the National Defense Authorization Act (NDAA). Our comment details that protected whistleblower speech cannot be subject to blanket nondisclosure that would otherwise keep the body politic in the dark regarding severe threats to the public safety or health.
Our Immigration Counsel, Andrea Meza, commented:
“Given the vital role whistleblowers have played in oversight of ORR’s conditions of detention for unaccompanied children, it is critical that the HHS reconsider language in its proposed rule which would place a gag on employees who wish to speak out about problems they may witness. While the purported intent of the rule is to codify protections for unaccompanied children, given HHS’ track record of poor oversight of ORR operations, gags on whistleblowers’ speech will only serve to endanger children. We urge HHS to use this rulemaking opportunity to reinforce statutory protections for federal employees and contractors who speak up to keep children safe.”
Contact: Andrew Harman, Government Accountability Project Communications Director
Email: [email protected]
Phone: 202.926.3304
Government Accountability Project is the nation’s leading whistleblower protection organization. Through litigating whistleblower cases, publicizing concerns and developing legal reforms, Government Accountability Project’s mission is to protect the public interest by promoting government and corporate accountability. Founded in 1977, Government Accountability Project is a nonprofit, nonpartisan advocacy organization based in Washington, D.C.
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