Summary
Confidentiality plays a pivotal role in child abuse proceedings. In order for the system to work, mandated reporters need to feel secure in making allegations, children need to be protected from subsequent abuse and families need to be shielded from unwarranted public scrutiny. However, blanket provisions for confidentiality does not always promote the best interests of child victims and their families. Child protective agencies, medical providers, law enforcement agencies and even schools routinely report having problems in getting information from one another about the children they are jointly serving.
What Policy Can Do
Abused and neglected children can benefit from an environment of openness and a system that provides for thorough sharing of all information potentially relevant to the child or case at issue, including but not limited to records that might otherwise be considered confidential. Amendments adopted in 2003 require state Child Protective Services (CPS) to “disclose confidential information to any Federal, State, or local government entity, or any agent of such entity,” that has a legal responsibility to protect children. However, the types of agencies and agents that need to receive information, as well as the scope of information to be provided, have not been clarified.
Important records should be available to all agencies protecting and representing children with no intrastate or interstate barriers to sharing information. Information should be used to promote public accountability and system reform. Also to that effect, court hearings and records should be open, with judicial discretion to close: Currently, only 19 states permit open courts – Arizona, Colorado, Florida, Georgia, Indiana, Iowa, Michigan, Minnesota, Missouri, Nebraska, New Jersey, New York, North Carolina, Ohio, Oregon, Pennsylvania, Texas, Utah and Washington.
Legislative Objectives to Benefit Children
- Promote Open Courts
Child dependency courts should conduct open proceedings with judicial discretion to close any hearing or a portion of a hearing if extenuating circumstances exist or for cause shown.
- Provide Information to Advocates
Specifically, provide attorneys and others representing children unrestricted access to court records; give attorneys and others representing a child timely access to the child’s records; and encourage child advocates in each state to develop standards for open records.
- Provide Information to Parents and Providers
Make records available to parents, foster parents, agencies, and attorneys and others representing, protecting and serving the child with no intrastate or interstate barriers to sharing information.
- Permit Agency Access to Information
Assure that information affecting the child’s safety is provided to the child protection agency with no intrastate or interstate barriers to sharing information.
- Promote Public Accountability With Information
Assure that information is used to analyze the performance of child protection agencies and promote reform through public education.
- Eliminate Barriers to Information Posed by HIPAA
Local misconstruing of HHS privacy rules under the Health Insurance Portability and Accountability Act (HIPAA) – and failure of the rules to have clear exceptions for child protection case situations – hinders information access for advocates, courts and service providers.