CONFIDENTIALITY OF CHILD PROTECTIVE SERVICES

Child Welfare Project

NCSL LEGISBRIEF - June/July 1998, Vol. 6, No. 29

CONFIDENTIALITY OF CHILD PROTECTIVE SERVICES RECORDS

By Nina Williams-Mbengue

A physician notifies child protective services (CPS) that she suspects a child in her care is being physically abused. CPS begins an extensive investigation to determine whether the abuse has occurred, contacting the child's family, school and neighbors. CPS confirms the abuse, enters the case onto the state's central child abuse registry and begins to develop a case plan to treat the family and prevent the abuse from recurring. Can the physician find out whether or not an investigation was conducted? Who has access to the central registry information on the family? Are parents allowed to see investigative information? What type of information is the treatment agency or organization allowed to see?

State lawmakers respond to these important questions by enacting legislation to protect the privacy of vulnerable children and families while allowing state agencies and other organizations to gather the information needed to carry out their duties. For example, most states allow child protective services, law enforcement, physicians, attorneys and the courts access to confidential records, including the central child abuse registry, in order to better investigate reports of child maltreatment, treat abuse victims and prosecute perpetrators of child abuse and neglect.

Federal Confidentiality Requirements

Provisions governing confidentiality and sharing information in the federal Child Abuse Prevention and Treatment Act (CAPTA) guide state legislation. In order for states to receive federal funding for their child abuse programs, CAPTA requires that states maintain the confidentiality of CPS records. In 1996, CAPTA was reauthorized and the confidentiality provisions were made more specific. CAPTA requires states to enact legislation authorizing disclosure of confidential information, with provisions to protect the identities of children and families, to:

Persons who are subjects of reports,
Federal, state and local government entities that need the information to carry out their work to protect and treat children,
The public, in cases of a child fatality or near fatality,
Child abuse citizen review panels (panels are not allowed to release identifying information, but the state has the option of deciding what types of information may be made public),
Child fatality review panels,
A grand jury or a court,
Other entities specifically authorized by the legislature and placed in statute.

The federal law requires that recipients of information maintain confidentiality by not redisclosing information to others. States may, but are not required to, disclose the identity of those who report child abuse. Finally, states are required to expunge records of unsubstantiated or false reports that are accessible to the public or that are used for employment screening or background checks.

STATE ACTIONS

Many states have already enacted legislation mandated by the new provisions. Legislators want to safeguard the privacy of children and their families, but are also concerned about oversight and accountability of the child protection system. Most states already authorize sharing of information among professionals and agencies involved in child abuse cases. These provisions usually allow sharing among law enforcement, attorneys, prosecutors or guardians-ad-litem, multi-disciplinary or child protection investigation teams, physicians and agencies responsible for providing treatment to abused children. States allow other agencies access to confidential records and reports including: coroners and medical examiners (California, Georgia, Illinois, Indiana, Kentucky, Minnesota, Montana and South Carolina); schools and departments of education (Arizona, Georgia, Illinois, Kentucky, Maine, Missouri, Montana, New Hampshire, New Mexico and Virginia); probation and parole agencies or departments of corrections (Louisiana, Illinois, New York, Rhode Island and Indiana); tribal agencies (Maine, Montana, New Mexico, South Carolina and Wisconsin): child fatality review boards (Kansas, Kentucky, Missouri, Montana and South Carolina); and state auditors (Colorado, Connecticut, Florida, New York, Oregon and Pennsylvania).

Eliza's Law

In November 1995 in New York City, 29-year old Awilda Lopez beat her 6-year old daughter, Elisa Izquierdo, to death. Little Elisa had been abused by her mother repeatedly. Indeed, her case had come to the attention of caseworkers, teachers and doctors, but, in addition to caseworker error, a lack of coordination among agencies and little or no sharing of information had fatal consequences for Elisa. For example, school officials did not realize Elisa was not attending school just prior to her death. Additionally, Elisa's mother was allowed repeatedly to abandon drug rehabilitation and parenting programs. After Elisa's death, CPS could not discuss the case because of the state's confidentiality laws. Some observers assumed that CPS was hiding damaging information. As a result of Elisa's case and the deaths of other children before her, the New York state legislature enacted The Child Protective Services Reform Act of 1996, known as Elisa's Law, to ease restrictions on disclosure of information in child abuse cases. The goal is to enhance the public's trust that children are being adequately protected, improve child death investigations and strengthen the legislature's ability to make informed policy decisions in its oversight of the child protection system. The legislation requires child fatality information be made available to city, state and county comptrollers and auditors. It also requires that those investigating a case, such as physicians, CPS, service providers and district attorneys, share information. In addition, the public is to be provided information on maltreatment and fatality cases, with provisions to protect the identity of the child and family. Other states that require public disclosure of information on a child fatality or near-fatality include Arizona, Arkansas, Colorado, Florida, New York, Nevada and Washington.

In addition to state and local agencies and officials, many states provide a variety of interested private citizens access to confidential reports and records, with provisions to protect the identity of the children and families involved. Reporters of child maltreatment are allowed access to certain types of information, such as whether or not an investigation was conducted and/or its outcome, in Arkansas, California, Connecticut, Georgia, Iowa, Maine, Massachusetts, Mississippi, Nebraska, New Hampshire, New York, North Dakota, Ohio, Pennsylvania and Rhode Island. A large number of states allow alleged perpetrators, parents and children access to records or reports. Prospective foster and adoptive parents are granted access to records of children in Arizona, Arkansas, California, Colorado, Georgia, Maine, New Mexico, Pennsylvania, South Carolina, South Dakota, Texas and Wisconsin.

Other areas of disclosure of confidential records and reports include sharing with or disclosing information to entities such as grand juries, departments of juvenile justice, child advocacy centers, health departments, division of administrative hearings, foster care and adoption licensing agencies and CPS and law enforcement in other states.

Selected References

Bussiere, Alice; Abigail English; and Catherine Teare. Sharing Information: A Guide to Federal Laws on Confidentiality and Disclosure of Information for Child Welfare Agencies. Washington, D.C.: The ABA Center on Children and the Law, 1997.
U.S. Department of Health and Human Services, National Center on Child Abuse and Neglect. Child Abuse and Neglect State Statute Series: Volume II, Central Registries. Washington, D.C.: U.S. Department of Health and Human Services, 1997.

Contacts for More Information

At NCSL contact Nina Williams-Mbengue, 303-364-7700

National Center on Child Abuse and Neglect 1-800-394-3366

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