obtaining, using, and disclosing confidential information fundamentals of social services law...

Obtaining, Using, and Disclosing Confidential Information

Fundamentals ofSocial Services Law

Institute of GovernmentThe University of North Carolina at

Chapel HillNovember, 2004

Institute of Government, UNC-Chapel Hill © 2004

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What Does Confidentiality Mean?Nature of informationPrivate, personal, sensitive, embarrassing

Disclosure might injure subject

Nature of relationshipInfo communicated in confidence

Expectation that info won’t be disclosed to others

Ownership of informationIndividual right to privacy and personal autonomy

Choose whether, when, & to whom info disclosed


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What Does Confidentiality Mean?Legal ruleLegal rights & duties

Prohibitions, restrictions, protections, & remedies

Acquisition, use, or disclosureSpecific type of informationParticular personsSpecific circumstances

Rarely, if ever, absoluteMeaningless in abstract


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Legal Analysis of ConfidentialityThree contextsDisclosing confidential information

Using confidential information Obtaining confidential information

Two questionsIs the info confidential?

Identify & determine scope of legal ruleException that allows or requires disclosure?

Apply legal rule to context


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Legal Analysis of ConfidentialityObjectWhat info is confidential?

Nature, subject, sourceForm, format, location

SubjectTo whom does info pertain?

Ownership, consent, identification

PurposeWhy is disclosure restricted?

Personal & public interests


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Legal Analysis of ConfidentialityApplicabilityWho is subject to confidentiality restrictions?

Legal authorityDoes it “trump” other rules?

Create enforceable rights & duties?Legal sanctions for violation?

ExceptionsInternal & externalExplicit & implicit


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Legal Analysis of ConfidentialityDisclosureWhen may info be disclosed with consent?

Who may consent?How is consent given (what form)?

When is disclosure required, allowed, prohibited?

By whom?To whom?For what purpose?What procedure?


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Some General Rules of ThumbInfo is not confidentialUnless confidential as per specific legal rule

Confidentiality is never absoluteAlways some exception

Confidential in some contexts but not others

Confidential info may be used or disclosedWith subject’s consentPursuant to court orderTo properly administer program If subject not identified


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Some Myths About ConfidentialityConfidentiality always “follows” the infoAlways determine who is subject to rule

Sharing or disclosure is OK As long as it is “in house”

Internal “disclosure” & restrictions on “use”

As long as it is informal or oral, not written copy

Usually whether, not how, info disclosed If “the cat is already out of the bag”If subject is dead


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Constitutional Right to Privacy?U.S. & N.C. ConstitutionWhalen v. Roe (US 1977)

Treants v. Onslow County (NC App 1986)

ACT-Up v. Comm’n for Health Services (NC 1997)

Government agenciesAcquisition, use, disclosure

Personal information regarding individuals

Balance government need vs. personal interest


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Common Law Right to Privacy?Tortious invasion of personal privacyNo claim for public disclosure of private info

Possible claim for emotional distress

Hall v. Post (NC 1989)

Woodruff v. Miller (NC App 1983)


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Federal Confidentiality RulesFederal government info & recordsFederal Freedom of Information & Privacy Acts

Do not apply to state & local government

Federal laws of general applicationMay preempt or “trump” state law (42 CFR 2)

May establish “floor” or defer to state law (HIPAA)

Federal funding conditionsMay or may not create enforceable individual rights

FERPA, CAPTA, etc.


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Public Records Law (GS 132-1)Public recordRecorded info (regardless of format)

Document, computer, digital, audio, photo, email

Made or received in connection with public businessState & local government agencies & officials

Private contractors & agents

Any personInspect & copy for any purpose

Reasonable procedures & fees


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Public Records Law (GS 132-1)ExceptionsPublic Records Law (express)Other statutes (express or implied)

Confidential = not a public recordNot a public record ≠ confidential

ProceduresRedacting info from public recordsRetention & destruction of public records


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Privileged CommunicationsCommunicationBy individual to doctor, attorney, clergy, spouse, etc.

Within scope of confidential relationship

Inadmissible in legal proceedingUnless waived, exception, or court order

Disclosure in other contexts May or may not be OK

Technically, privileged ≠ confidentialExceptions allowing or requiring disclosure


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Social Services Records

GS 108A-80 & 10A NCAC 69Unlawful for any person toObtain, use, or disclose

Purpose not directly related to social servicesAny info

Obtained by DSS while performing official duties

Directly or indirectly derived from DSS records, etc.

About DSS client Person who applies for or receives social services


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Social Services Records

With client’s consentWritten, signed, informed, voluntary

Without client’s consent (notice)Required by court orderRequired by federal or state lawResearch (if info de-identified) Federal & state programs

Unless prohibited by source or legal rule


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Special DSS Confidentiality RulesAdoptionAPSCPS Identity of reporterDSS investigationCAPTACentral registry

Child support (IV-D)

Child welfare services Child protectionFoster children

Criminal history checksDSS employeesFood stampsMedicaidTANF


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DSS Disclosure in Child WelfareNC lawDA & law enforcementCrime (not parent, etc.)Fatality (central registry)

DHHS & SBIChild day careSexual abuse in day care

Person who reports abuse Child protection team Public disclosure (request)Fatality or near fatality

Other agenciesProtective servicesServe juvenile

Juvenile casesGAL, child, child’s attorneyDiscovery

Court order

CAPTAIndividual subject CPS reportCourt or grand juryOthers for legitimate purpose


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Who May Consent?

General rulePerson who is subject of infoClient, patient, employee, informant

Incapacity to consentIncompetentMentally impaired

Minor childMature minor

Deceased

Consent obo clientGS 108A-80Guardian of incompetentDSS director (foster child)Other responsible personChild’s parent (???)

HIPAAPersonal representative

GS 122CLegally responsible person

FERPAParent, guardian, ILP


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Responding to SubpoenasNC Civil Procedure Rule 45Civil & criminal proceedings

Issued by judge, clerk, attorneyNC court (or federal court)

Subpoena to appear & testifyCourt (in NC) or deposition (in county)Served on agency or individual witness

Subpoena to produce documents (inspect & copy)

Court, deposition, attorney’s office Served on custodian of records


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Responding to SubpoenasAppear, testify & produceDisclosure required or allowed (consent, order, etc.)

Motion to quash (or written objection)Within 10 days & before compliance required

Confidential or privileged info (state nature & basis)

Insufficient time, undue burden, defective, etc.Order to override or compel compliance

Costs & attorneys fees

Failure to respondContempt


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Disclosure in Child Custody CasesSubpoenaInsufficient for disclosure

Without consent or court orderMotion to quash or written objectionRitter v. Kimball (NC App 1984)

Ask judge to review in cameraBalance public & private interestsRedact info (e.g. informant’s identity)Protective order prohibiting redisclosure


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Disclosure in Criminal CasesCriminal investigationSpecial proceeding in superior court

In re Albemarle Mental Health Center (NC App 1979)

In re Brooks (NC App 2001)

Petition by district attorney Served on agency

Opportunity for objection & hearingIn camera inspection by judge

Proper administration of justice


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Disclosure in Criminal CasesExculpatory evidencePennsylvania v. Ritchie (US 1987)

NC v. Phillips (2001), Johnson (2001), Johnson (2004)

Subpoena or court orderDefense counsel

Notice & opportunity for hearingPlausible showing regarding exculpability In camera review by superior court judge

Favorable to defendant & material to issue of guilt

Credibility of witness


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Disclosure to DSS in Child WelfareReporting suspected abuse & neglectGS 7B-310

Overrides (almost all) state law privilegesDoesn’t “trump” federal law

CPS investigation & servicesGS 7B-302(e)

Overrides privilege (except attorney-client)

Does not “trump” federal lawCriminal investigation withheld with court order


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Disclosure to DSS in Child WelfareInformation sharingGS 7B-3100 & 28 NCAC 01A.0301 & .0302

Human services, school, law enforcement

Other agencies designated in administrative order

Relevant to pending juvenile proceedingProtect juvenile or others

Improve juvenile’s educational opportunities


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Alcohol & Substance Abuse42 CFR 2Alcohol or drug treatment program

Any info that identifies person as patient

ExceptionsMandatory report of child abuse & neglect

Patient consentCourt order


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FERPA

34 CFR 99Federally-funded educational institutions

Student info in “educational record”Not info based on personal knowledge

ExceptionsConsentSubpoenaCourt order


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HIPAA

45 CFR 164Health care providers & health plans

Physical or mental condition, treatment, payment

ExceptionsReport child abuse & neglectRequired by state lawConsentSubpoenaCourt order

Obtaining, Using, and Disclosing Confidential Information

Fundamentals ofSocial Services Law

Institute of GovernmentThe University of North Carolina at

Chapel HillNovember, 2004

http://www.dssattorneys.unc.edu/confidentiality.htm

obtaining, using, and disclosing confidential information fundamentals of social services law...

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