All Advisory Opinions At-A-Glance

The Compact requires member states to share information regarding juveniles and their families when necessary for transfers of supervision of adjudicated delinquents, returns (including non-delinquent runaways), and travel permits.  This information includes health information about these juveniles which is otherwise protected by the Health Insurance Portability and Accountability Act of 1996 (HIPAA).  However as discussed herein, the HIPAA Privacy Rules allows disclosures of protected health information when consistent with applicable law and ethical standards, including disclosures to a law enforcement official reasonably able to prevent or lessen a serious and imminent threat to the health or safety of an individual or the public or to identify or apprehend an individual who appears to have escaped from lawful custody.  As described above, since the ICJ Commission developed the UNITY system in compliance with the mandates of the ICJ statute and duly authorized rules, as well as the FBI’s Criminal Justice Information Services (CJIS) Security Policy, the use of UNITY is permitted pursuant to the HIPAA exemptions with respect to both Personal Identifiable Information (PII) as well as Personal Health Information (PHI).

The ICJ Rules, when interpreted in harmony with each other, do not require the sending state to submit a revised Form VI and/or Form IV to the receiving state when a juvenile makes an intrastate move after a transfer of supervision has been approved.  The receiving state is authorized to approve a change in residence and should send an additional report to provide information regarding the change to the sending state.  The sending state retains jurisdiction and may exercise its discretion to determine the appropriate response.

While ICJ Rule 4-102 (2) (b) does not require that a referral be rejected solely on the basis of the fact that the Form VI was out of date, the operative nature of the above referenced ICJ Rules require the sending state to ensure that the referral is complete and forwarded to the receiving state.  That affirmative obligation coupled with clear indications that the document was tampered with after being approved by the Court and the nature of the information omitted from the form based on the fact it is outdated, taken together are sufficient to justify the refusal to accept the referral under these circumstances. 

Based upon the fact that a juvenile is entitled to be informed of his/her due process rights under ICJ Rule 6-102 (5), it is consistent that a juvenile who learns that he/she will not be returned to the home state should be afforded the opportunity to withdraw their consent to voluntary return under ICJ Rule 6-102. In that case, the procedures under ICJ Rule 6-103 could be applied.

ICJ Rule 6-102(2) provides the authority to hold an absconder, escapee, or accused delinquent, even in absence of a warrant.

The mere fact that a request to hold a probation/parole absconder, escapee or accused delinquent under ICJ Rule 6-102(2) is oral rather than written would not in and of itself be a denial of due process.  Nonetheless, a written request would nonetheless appear to be advisable for the purposes of documentation and proof that such a request was made.

In summary, a duty to return appears to arise under ICJ Rule 7-104(3) only if mandated by other ICJ rules.

Moreover, because the ICJ is an interstate compact to which congressional consent has been given, under both the compact clause (Art. I, Section 3.) and the contract clause (Art. I, Sec. 1) of the U.S. Constitution, the provisions of the ICJ and its administrative rules supersede any conflicting state laws, including confidentiality requirements applicable to issuance of warrants for juveniles subject to the compact and the requirements of ICJ Rule 7-104 that “shall be entered into the National Crime Information Center (NCIC) with a nationwide pickup radius and not eligible for bond.”

However, there may be situations in which a return is not possible.  In such cases, documentation should be provided by home/demanding/sending state in writing as to the reason why it is not possible to affect a return. The written explanation should note specific provisions of the Compact, its authorized rules, and/or controlling circumstances, such as that no parent or legal guardian remains in the state.  Given the clear mandate of the Rule 7-104(3), the use of this procedure should be limited to only those cases where return is not possible.  Subsequent action by the Commission to clarify requirements for such cases would also be warranted.