Howard Davidson, Director, American Bar Association Center on Children and the Law, presents changes in law and policy regarding the issues of managing privacy and confidentiality of child abuse cases and the need for greater transparency and accountability from those who manage the cases.
8. GEORGIA Received a Grade of B (2012)
I. Is there a state policy regarding public disclosure of findings or information
about child abuse or neglect which has resulted in a child fatality or near
fatality? Yes. 40 out of 40
II. Is the state policy codified in statute? Yes (O.C.G.A. § 49-5-41). 10 out of 10
III. What is the ease of access to the information? Georgia’s policy requires
mandatory disclosure. Any adult requesting information regarding
investigations by the department of a governmental child protective agency
regarding the findings or information about the case of child abuse or neglect
that results in a child fatality or near fatality “shall have reasonable access to
such records concerning reports of child abuse.” (O.C.G.A. § 49-5-41(a)).
20 out of 20
9. IV. What is the scope of information authorized for release? Georgia’s policy
is vague and unclear with a moderate restriction. The information authorized
for disclosure is limited to “the available facts and findings” with no further
clarification or description (O.C.G.A. § 49-5-41(a)(6)). The moderate restriction
is that information will not be released if it is made confidential by another
provision of the law (O.C.G.A. § 49-5-41(e)). 6 out of 20
V. Are child abuse/neglect proceedings open? Pursuant to O.C.G.A.§ 15-11-78,
proceedings are presumptively open to the general public. However the court
“may refuse to admit a person to a hearing…upon making a finding …that the
person’s presence at the hearing would: (1) Be detrimental to the best interest
of a child who is a party to the proceeding; (2) Impair the factfinding process; or
(3) Be otherwise contrary to the interest of justice.” (O.C.G.A.§ 15-11-78). A
judge may order the media not to release identifying information concerning
any child or family members or foster parent or other caretaker of a child
involved in hearings open to the public (O.C.G.A § 15-11-78(i)). 10 out of 10
10. ”
Commission created by the “Protect Our Kids Act” – P.L. 112–275 (1/14/13)
I presented on this issue at their July 2014 meeting
11. I opened a panel discussion on July 11th on
confidentiality, providing background on how the original
1974 CAPTA requirements, that were primarily focused
on keeping records private, should be amended to
require more disclosure
“To prevent child deaths,” I said, “CAPTA must evolve
from a ‘you must keep confidential’ focus to a ‘you must
disclose’ focus.”
“While an amendment [to CAPTA] was passed in 2003
to promote mandatory disclosure, older regulations
requiring states to criminalize disclosures, and lack of
guidance to states on permissible and mandated
disclosures, may actually be working to inhibit full
implementation of CAPTA’s disclosure provisions.”
12.
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23. August 2014 128 pages
http://www.acf.hhs.gov/sites/default/files/assets/acf_confidentiality_toolkit
_final_08_12_2014.pdf
Good summary of federal laws on information exchange
24. Appendix B of this document is particularly useful with models for information
sharing:
Includes Memorandums of Agreement and Understanding, Security
Agreements, and Notices of Privacy Practices from:
State of Kentucky – Memorandum of Agreement
State of New York – Master Memorandum of Understanding
State of Colorado – Master Memorandum of Understanding
ACF/Office of Child Support Enforcement – Security Agreement
Montgomery County, Maryland – Notice of Privacy Practices
Hinweis der Redaktion
2014 New Florida Law– Chapter 2014-224 has provision on five things that must be disclosed after a child dies, requiring information to be posted on the child welfare agency’s website
From this report re. Georgia:
In the April 2008 State Secrecy Report, Georgia’s score was 50, earning it a grade of F. In 2009, the Georgia
General Assembly amended O.C.G.A. § 49-5-41 to make that provision applicable to child fatalities and near
fatalities, remove some severely restrictive conditional language regarding the ease of access to information, and
revise the scope of information authorized for release. The General Assembly also amended O.C.G.A. § 15-11-78 to
make abuse/neglect hearings presumptively open to the general public.
Motivator for laws like this may be Elisa’s Law in NY (1996) enacted following a very publicized child death – Social Services Law 422-a
Permits disclosure as long as commissioner/director find it would not be in the best interests of the child, the child’s siblings, or other children in the home to do so
REPORT TO CONGRESS ON IMMUNITY FROM PROSECUTION FOR PROFESSIONAL CONSULTATION IN SUSPECTED AND KNOWN INSTANCES OF CHILD ABUSE AND NEGLECT June 2013
http://www.acf.hhs.gov/sites/default/files/cb/capta_immunity_rptcongress.pdf
In 2003 I wrote a short paper on HIPAA and child abuse/neglect that’s been widely circulated. There’s not much else out there on this topic. Unfortunately, other than clearly stating in HHS Frequently Asked Questions on HIPAA that reporting of abuse/neglect as required by state law doesn’t violate the HIPAA Privacy Rule, the FAQs don’t directly address child maltreatment cases and access to protected health information.
Second recommendation is based on Feb. 2013 GAO Report: Sustained and Coordinated Efforts Could Facilitate Data Sharing While Protecting Privacy (on Commission’s website)
