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Child-Maltreatment-Research-L (CMRL) List Serve

Database of Past CMRL Messages

Welcome to the database of past Child-Maltreatment-Research-L (CMRL) list serve messages. The table below contains all past CMRL messages (text only, no attachments) from Nov. 20, 1996 - March 6, 2018 and is updated quarterly.

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Message ID: 9487
Date: 2013-12-16

Author:D F MCMAHON

Subject:RE: confidentiality

So, I am referring specifically to records created by the child welfare agency in an investigation. The statute reads (with respect to subjects): 50-25.1-11. Confidentiality of records -Authorized disclosures. 1. A report made under this chapter, as well as any other information obtained, is confidential and must be made available to: > > > d. Any person who is the subject of the report; provided, however, that the identity of persons reporting or supplying information under this chapter is protected until the information is needed for use in an administrative proceeding arising out of the report If an individual who is a subject requests a copy of an assessment, they will receive a redacted copy that, as I said earlier, redacts all information received from sources other than that individual (they will NOT receive even redacted copies of documents the agency has received from other entities, only the agency's own documents). In fact, even when a subject requests an administrative hearing, they do not receive an unredacted copy, in spite of what the statute says (but may request it through a discovery motion). If there is a civil or criminal court proceeding, then yes, material may be provided as part of discovery. I realize there may be information not directly relevant to the assessment that may also need to be removed (case in point, I was reviewing case logs for someone, the other parent had remarried, and some information that should have been confidential regarding the other parent's new spouse and her family--not relevant to the case at all--found its way into the logs and was missed by the people redacting information). I am just wondering what protocols are followed by CPS agencies when subjects request their records, and how extensive the redaction is ________________________________ Date: Wed, 11 Dec 2013 10:09:51 -0500 Subject: Re: confidentiality From: drborkosky@gmail.com To: child-maltreatment-research-l@list.cornell.edu Sheri, I'm speaking rather generically, because there is critical information not provided in your question. Any time you are dealing with disclosure of information, you must ask 3 questions: 1. who has the information 2. who requests it 3. who gets it These 3 questions will help you figure out what rules apply for any particular sitation. Typically, we assume that the holder of the records is us, but that doesn't always apply to every situation. If the Court requests your records, then the rules of privilege and discovery apply. In such cases, it is unlikely that you can withhold a part of your records. If the patient is requesting records sent to them or a 3rd party, then state and federal confidentialty laws apply. Some thoughts: - your state has mandatory access laws - assuming that your state has no provision that authorizes you to withhold a part of your records, then you may be liable for state licensing or civil action - HIPAA and some states certain provisions that permit you to withhold a portion of the records under certain specific conditions, such as serious bodily harm - HIPAA does have one provision that might apply - you are permitted to withhold collateral records, if both conditions apply: a. the source requested anonymity b. releasing the records would violated anonymity There is no case law that I'm aware of that has looked at the validity of this provision. Generally, state laws that give patients more rights are not preempted by HIPAA. In this case, I would think that releasing the records would be giving the patient more rights. Further, you may still be liable for state sanctions, if your BOP does not recognize HIPAA. I'd love to see your statute/rule, if you could post it. I know many child abuse statutes have a similar rule (only the name of the reported is protected). Most alleged perpetrators can pretty easily figure out who it was BB On Wed, Dec 11, 2013 at 12:38 AM, D F MCMAHON > wrote: Question about confidentiality of reporters vs. confidentiality of information provided by reporter: In ND it is routine to redact not only reporter information but all content provided by reporter or anyone contacted in the course of an investigation. So, for example, a subject who is appealing an indicated finding does not have access to any information in the records other than information he or she provided. Statute and agency rules, however, only state that the identity must be withheld. What are the practices in other jurisdictions in this regard? Sheri McMahon North Dakota -- Bruce G. Borkosky, Psy.D. PA 1800 Lakeview Drive Sebring, FL 33870 863-386-0276 800-919-9008 Fax 813-200-8450 ForensicPsychologist@outlook.com www.fl-forensic.com www.psyris.com/bruceborkosky www.bruceborkosky.com This communication is confidential and privileged. If you are not the intended recipient, please communicate the error immediately, and delete all copies.

So, I am referring specifically to records created by the child welfare agency in an investigation. The statute reads (with respect to subjects): 50-25.1-11. Confidentiality of records -Authorized disclosures. 1. A report made under this chapter, as well as any other information obtained, is confidential and must be made available to: > > > d. Any person who is the subject of the report; provided, however, that the identity of persons reporting or supplying information under this chapter is protected until the information is needed for use in an administrative proceeding arising out of the report If an individual who is a subject requests a copy of an assessment, they will receive a redacted copy that, as I said earlier, redacts all information received from sources other than that individual (they will NOT receive even redacted copies of documents the agency has received from other entities, only the agency's own documents). In fact, even when a subject requests an administrative hearing, they do not receive an unredacted copy, in spite of what the statute says (but may request it through a discovery motion). If there is a civil or criminal court proceeding, then yes, material may be provided as part of discovery. I realize there may be information not directly relevant to the assessment that may also need to be removed (case in point, I was reviewing case logs for someone, the other parent had remarried, and some information that should have been confidential regarding the other parent's new spouse and her family--not relevant to the case at all--found its way into the logs and was missed by the people redacting information). I am just wondering what protocols are followed by CPS agencies when subjects request their records, and how extensive the redaction is ________________________________ Date: Wed, 11 Dec 2013 10:09:51 -0500 Subject: Re: confidentiality From: drborkoskygmail.com To: child-maltreatment-research-llist.cornell.edu Sheri, I'm speaking rather generically, because there is critical information not provided in your question. Any time you are dealing with disclosure of information, you must ask 3 questions: 1. who has the information 2. who requests it 3. who gets it These 3 questions will help you figure out what rules apply for any particular sitation. Typically, we assume that the holder of the records is us, but that doesn't always apply to every situation. If the Court requests your records, then the rules of privilege and discovery apply. In such cases, it is unlikely that you can withhold a part of your records. If the patient is requesting records sent to them or a 3rd party, then state and federal confidentialty laws apply. Some thoughts: - your state has mandatory access laws - assuming that your state has no provision that authorizes you to withhold a part of your records, then you may be liable for state licensing or civil action - HIPAA and some states certain provisions that permit you to withhold a portion of the records under certain specific conditions, such as serious bodily harm - HIPAA does have one provision that might apply - you are permitted to withhold collateral records, if both conditions apply: a. the source requested anonymity b. releasing the records would violated anonymity There is no case law that I'm aware of that has looked at the validity of this provision. Generally, state laws that give patients more rights are not preempted by HIPAA. In this case, I would think that releasing the records would be giving the patient more rights. Further, you may still be liable for state sanctions, if your BOP does not recognize HIPAA. I'd love to see your statute/rule, if you could post it. I know many child abuse statutes have a similar rule (only the name of the reported is protected). Most alleged perpetrators can pretty easily figure out who it was BB On Wed, Dec 11, 2013 at 12:38 AM, D F MCMAHON > wrote: Question about confidentiality of reporters vs. confidentiality of information provided by reporter: In ND it is routine to redact not only reporter information but all content provided by reporter or anyone contacted in the course of an investigation. So, for example, a subject who is appealing an indicated finding does not have access to any information in the records other than information he or she provided. Statute and agency rules, however, only state that the identity must be withheld. What are the practices in other jurisdictions in this regard? Sheri McMahon North Dakota -- Bruce G. Borkosky, Psy.D. PA 1800 Lakeview Drive Sebring, FL 33870 863-386-0276 800-919-9008 Fax 813-200-8450 ForensicPsychologistoutlook.com www.fl-forensic.com www.psyris.com/bruceborkosky www.bruceborkosky.com This communication is confidential and privileged. If you are not the intended recipient, please communicate the error immediately, and delete all copies.