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Child Welfare: Information Sharing Among Agencies

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Child Welfare: Information Sharing Among Agencies Howard Davidson Director, ABA Center on Children and the Law davidsonha_at_staff.abanet.org Conflicting Agency Agendas ... – PowerPoint PPT presentation

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Title: Child Welfare: Information Sharing Among Agencies


1
Child Welfare Information Sharing Among Agencies
  • Howard Davidson
  • Director, ABA Center on Children and the Law
  • davidsonha_at_staff.abanet.org

2
4 Key Policy Goals in Child Welfare Privacy and
Information Sharing
  • Protect the privacy and dignity of the
    individual.
  • -- Protect child and family from needless
    embarrassment and invasion of privacy.
  • Get information to protect the child.
  • -- Get information to evaluate what danger, if
    any, a parent or other adult poses to a child.
  • -- Get information to help determine the
    placement, set visitation, and provide other
    protections.

3
  • Share information to protect the child and
    provide services.
  • Get information to provide services for family
    and child.
  • Get information to identify the childs special
    needs for care, treatment, and education.
  • Get information to determine what services
    parents and other household members need.
  • Provide information to others who will collect
    and share further information with the child
    welfare agency.
  • Provide information needed by others to provide
    services to child and family.

4
Dependency Court Openness--Abuse Neglect Case
Access Policies
  • 2 states presume open access in all cases.
  • 14 states presume open access, with judicial
    discretion to close cases.
  • 10 states presume closed access, with judicial
    discretion to open cases.
  • 6 states presume closed access, with some
    exceptions.
  • 21 states presumed closed access--period.

Data provided by the National Center for State
Courts
5
Conflicting Agency Agendas Regarding Privacy
  • Other agencies feel that giving information to
    child protection agencies makes it harder for
    them to achieve their goals.
  • Substance abuse providers concerns
  • Possibility of disclosure to agency limits
    clients willingness to share information
    necessary to their treatment
  • Risk of disclosure to agency may take away a
    parents motivation to stay in treatment

6
  • Domestic violence providers concerns
  • Disclosure to child welfare agency will
    disempower the protective parent victim by
    transferring control of their household to a
    child protection agency
  • Disclosure to child protection/child welfare
    agency compounds victimization from domestic
    violence with the loss of a child

7
When Medical and Mental Health Privileges Apply
  • Communications to medical professional
  • Generally applies only to communications for
    purposes of diagnosis or treatment.
  • May not apply to physical observations or tests.

8
Exceptions to Privileges
  • Key exceptions relevant to child welfare
  •  Some states have categorical exceptions for
    child welfare cases (or cases where child custody
    at issue).
  •  Other states have exceptions for referral to
    legal proceedings resulting from report of child
    abuse/neglect
  • Some other exceptions if privileges do
    otherwise apply to child welfare cases
  • Disclosures made in the presence of third
    parties.
  • Waiver of the privilege, including but not
    limited to signed consent.

9
Some Confidentiality Laws Important to Child
Welfare Cases
  • CAPTA
  • Titles IV-B IV-E of the Social Security Act
  • Substance Abuse Treatment Information
  • Criminal Records
  • Educational Records FERPA IDEA
  • Medical Records -- HIPAA

10
CAPTAChild Abuse Prevention and Treatment Act42
U.S.C. 5106a(b)
  • Requires many types of employees and
    professionals to share information with agencies
    -- by reporting child abuse and neglect.
  • More specifically, CAPTA requires states to pass
    laws that impose such requirements, 42 U.S.C.
    5106a(b)(2)

11
  • CAPTA restricts access to records related to
    child abuse and neglect, but allows disclosure of
    information to
  • Persons reported for abuse or neglect (but not
    the identities of confidential informants)
  • Child abuse citizen review and child fatality
    review panels
  • A grand jury or court that finds they need the
    information

12
  • Allows expansion of the list but only through
    state legislation
  • 42 U.S.C. 5106a(b)(2)(viii)(VI)
  • Allows courts to be open to the public, but only
    if that doesnt harm the safety and well being
    of children, families,and parents.
  • 42 U.S.C. 5106a(b)(2)(D) (paragraph following
    (D)

13
CAPTA
  • Requires
  • Disclosure of CPS/child welfare agency records to
    government agencies (and their agents) that need
    the information to protect children from abuse or
    neglect
  • 42 USC 5106a(b)(2)(ix)
  • Public disclosures concerning fatalities and
    near fatalities (an act, that, as certified by a
    physician, places the child in serious or
    critical condition).
  • 42 USC 5106a(b)(2)(x) 5106a(b)(4)

14
AACWA (1980) and ASFA (1997)
  • Additional rules governing child welfare agency
    records
  • While information generally is confidential,
    disclosure is permitted, e.g., for
  • Purposes related to the administration of Titles
    IV-B and IV-E
  • Any investigation, prosecution, or criminal or
    civil proceeding related to the administration
    of Titles IV-B and IV-E or certain other federal
    programs.

15
CAPTA, AACWA and ASFA(Titles IV-B and IV-E)
  • Childrens Bureau Policy The same
    confidentiality rules both CAPTA and IV-E may
    apply to the same cases.
  • Confidentiality restrictions apply to all forms
    of information, written or verbal, 42 USC
    671(a)(8).

16
Education Record AccessMYTH
We cant share any information about a student
with anyone who is not considered the parent.
17
REALITY
  • Education Records
  • Must follow guidelines under FERPA
  • But, not all information about a student is an
    education record under FERPA

18
MYTH
We cant share child specific education records
with anyone without parental consent
19
REALITY
  • The only individuals with automatic access to
    education records are the parent and youth over
    18.
  • Others involved with the child welfare system
    (e.g., caseworkers, child attorneys, GALs, CASAs,
    foster parents and caretakers) should be able to
    gain access in a variety of ways.

20
How Child Welfare Can Gain Access to Education
Records
  • Parental Consent
  • Child welfare agency representative or foster
    parent or caretaker is considered the parent
    under law
  • FERPA Exceptions (i.e., a court order granting
    access)

21
  • Always should first try and obtain parental
    consent from birth parent
  • FERPA Definition of Parent includes natural
    parent, a guardian, or an individual acting as a
    parent in the absence of a parent or guardian
  • Comments to Regulations confirm that foster
    parents who are acting as a childs parent
    qualify

22
FERPA Exceptions
  • Other school officials, including teachers, with
    legitimate educational interest in the child
  • In connection with an emergency, to protect the
    health and safety of student or other persons
  • Officials of other schools when child
    transferring schools
  • State and local authorities within department of
    juvenile justice
  • To comply with judicial order or subpoena

23
  • Law 42 U.S.C. 290dd-2 42 C.F.R. Part 2
  • Regulations are complex and strict
  • Must have either consent or court order to have
    access to information

24
  • Special consent requirements in 42 C.F.R. 2.31
  • Detailed written consent content of
    information, form of information, specific
    sources of records, time period of consent
  • Therefore, use of unique forms required
  • Retroactive revocation of consent is permitted

25
  • Strict grounds for court orders under 42 U.S.C.
    290dd-2(b)(2)(C)
  • Good cause is required a balancing test
  • Plus there are no other effective means to get
    the information
  • Plus, to obtain records of communications, there
    must be an existing threat to life or bodily
    injury (including child abuse or neglect) or the
    records are needed for prosecution -- 42 C.F.R.
    2.63

26
Child Welfare Agencys Need for Criminal Records
  • To assure safe caretakers for children, such as
    foster and adoptive parents, natural parents, and
    others living in the household
  • Learn important information about parents that
    will affect the case plan
  • Past criminal court ordered services and how a
    parent did
  • Current involvement with criminal justice system
    including court ordered services
  • Past severe maltreatment of child or children (in
    some cases)

27
Mandatory Criminal Records Checks
  • Mandatory criminal records checks, 42 U.S.C.
    671(a)(20), 5106a(b)(2)(A)(xxii).
  • For potential foster and adoptive parentsand now
    for other adult members of their households
  • But records checks not required for biological
    parents or people in their households
  • Must do FBI criminal records checks (should also
    do state checks)

28
Access to Criminal Records Databases
  • Additional permissive access to criminal record
    databases
  • Federal FBI database of child abuse crimes
    available to check persons and entities working
    with or caring for children
  • 20 U.S.C. 5119c(3), (8), (9), (10)
  • And full access to state criminal records
    databases is legal if permitted by state law.
  • 38 CFR 20.21(b)(2) 20.21(c)(3)

29
  • Federal database also available to child
    protection agency to get information on parents
    if
  • Consent
  • State statutory authorization
  • Request made through National Crime Prevention
    and Privacy Compact
  • 42 U.S.C. 14616

30
Access to Substance Abuse Treatment Records
  • 45 CFR Part 2 permits programs to comply with
    State laws that require the reporting of child
    abuse and neglect 42 CFR 2.12(c)(6). Privacy
    Rule also permits reporting 45 CFR
    164.512(b)(1)(ii)
  • Part 2 limits programs to only an initial report
    it does not allow programs to respond to
    follow-up requests for information or to
    subpoenas, unless patient has signed a consent
    form or court has issued an order that complies
    with the Part 2 rule

31
  • Disclosures to Qualified Service Organizations
    (QSOs)
  • Substance abuse treatment programs may make
    disclosures to a qualified service organization
    to enable the QSO to provide services to the
    program
  • QSO must have written agreement with the
    program providing that the QSO is governed by
    Part 2 and will resist in judicial proceedings
    efforts to obtain patient records
  • Source 42 CFR 2.12 (c)(4)

32
  • Requirements For a Court Order
  • Disclosures of confidential communications
    between a patient and a program in the course of
    diagnosis, treatment, or referral may be made
    only if disclosure is
  • Necessary to protect against threat to ones
    life or of serious bodily injury
  • Necessary in connection with the investigation
    or prosecution of a serious crime
  • In connection with litigation or an
    administrative proceeding in which the patient
    offers testimony or other evidence relating to
    the content of the confidential communications
  • Source 42 CFR 2.63

33
  • Court Orders for Disclosure for
  • Non-Criminal Purposes
  • Orders authorizing disclosure/use for
    non-criminal purposes must be based on
    determination of good cause and place limitations
    on disclosure and use
  • There are no other ways of obtaining
    information
  • The public interest in disclosure outweighs
    potential risks of disclosure
  • Disclosure is limited to parts of patients
    record essential for fulfilling objectives of the
    order
  • Disclosure made only to those person whose need
    for the information formed basis of the order
  • Source 42 CFR 2.64

34
Access to Protected Health Information
Generally (HIPAA)
  • Protected health information all individually
    identifiable health information held or
    transmitted by a covered entity or its business
    associate, in any form or media, whether
    electronic, paper, or oral.

35
Individually Identifiable Health Information
  • Individually identifiable health information
    includes
  • The individuals past, present or future physical
    or mental health or condition
  • The provision of health care to the individual OR
  • The past, present, or future payment for the
    provision of health care to the individual
  • AND that identifies the individual or for which
    there is a reasonable basis to believe the
    information can be used to identify the
    individual.

36
If a Child Welfare Agency is a Covered Entity,
Then What?
  • Covered entities must comply with the privacy
    rule
  • Governs protected health information
  • Permits certain uses and disclosures
  • Requires authorization for certain uses and
    disclosures
  • Specifies that covered entities may use or
    disclose only minimum necessary health
    information
  • Allows certain exceptions to minimum necessary
    rule
  • Provides administrative requirements for covered
    entities

37
Permitted Uses And Disclosures of Protected
Health Information
  • To the Individual
  • Treatment, Payment, and Health Care Operations
  • Public Interest and Benefit Activities

38
Public Interest and Benefit Activities
  • Required by Law
  • Public Health Activities
  • Aiding Victims of Abuse, Neglect, or Domestic
    Violence
  • Judicial and Administrative Proceedings
  • Serious Threats to Health or Safety

39
Authorization
  • A covered entity must obtain the individuals
    written authorization for any use or disclosure
    of protected health information that is not for
    treatment, payment or health care operations
  • An authorization must be written in plain
    language and contain specific information

40
Minimum Necessary
  • A covered entity must make reasonable efforts to
    use, disclose, and request only the minimum
    amount of protected health information needed to
    accomplish the intended purpose of the use,
    disclosure, or request

41
The Minimum Necessary Rule Is Not Required If
  • Disclosure is to a health care provider for
    treatment
  • Disclosure is to an individual or the
    individuals personal representative
  • Disclosure is to HHS to investigate a complaint
    or to review compliance, or is for enforcement
  • Use or disclosure is otherwise required by law

42
Special Administrative Burdens for Covered
Entities
  • Covered entities must, e.g.
  • Create a handout (notice) that provides a
    detailed explanation of privacy policies and
    procedures
  • Train their workforce on their privacy policies
    and procedures
  • Ensure security of its protected health
    information
  • Meet certain data requirements in the
    preservation of protected health information
  • Have procedures to take resolve complaints
  • Adopt special safeguards for their data

43
The Business Associate Applicability
  • A person or organization, other than a member of
    a covered entitys workforce (i.e., an employee),
    that performs certain functions or activities on
    behalf of, or provides certain services to, a
    covered entity that involves the use or
    disclosure of individually identifiable health
    information

44
Is a Child Welfare Agency a Business Associate?
  • Arguably yes, if they are disclosing or receiving
    protected health information to or from a
    covered entity.

45
If a Child Welfare Agency is a Business
Associate, Then What?
  • The child welfare agency must enter into a
    contract with every covered entity that
    provides it protected health information
  • The contract must ensure that the child welfare
    agency will itself apply the privacy rule
    regarding information exchanged with the covered
    entity
  • This includes the administrative requirements
    that apply to covered entities

46
What We Do Know
  • HIPAA does not inhibit reporting of child abuse
    and neglect
  • HIPAA supports disclosures of health information
    for public health prevention, surveillance,
    investigation, and intervention activities
  • HIPAA provides protections for child victim
    health information, but disclosures can still be
    made with victim consent or where necessary to
    prevent serious harm to them or other potential
    child victims
  • HIPAA gives courts, law enforcement agencies, and
    those determining the cause of child deaths the
    ability to access relevant health information
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