[Federal Register Volume 59, Number 95 (Wednesday, May 18, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-12087]
[[Page Unknown]]
[Federal Register: May 18, 1994]
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Part IV
Department of Health and Human Services
_______________________________________________________________________
Administration for Children and Families
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45 CFR Part 1340
Child Abuse and Neglect State Grant Program; Proposed Rule
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Part 1340
RIN 0970-AB23
Child Abuse and Neglect State Grant Program
AGENCY: Administration on Children, Youth and Families (ACYF),
Administration for Children and Families (ACF), HHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Administration on Children, Youth and Families, National
Center on Child Abuse and Neglect, is proposing to amend existing
regulations pertaining to the Child Abuse Prevention and Treatment Act,
on the confidentiality of child abuse and neglect records. These
regulations are proposed in response to an amendment, contained within
the Juvenile Justice Delinquency and Prevention Amendments, to the
Child Abuse Prevention and Treatment Act (CAPTA). The amendment directs
States to ensure that child protective services (CPA) records are
confidential and that disclosure and redisclosure are limited only to
those persons and entities who have a need for the records that is
directly related to the purposes of CAPTA, or to their responsibilities
under law to protect children from abuse and neglect. The amendment
requires States to provide for interagency sharing of child abuse and
neglect records to facilitate a more comprehensive, coordinated
approach in protecting children. The following proposed regulations are
intended to clarify the balance between protecting the privacy rights
of children and families and ensuring the disclosure of case records
when necessary for the protection of children. These regulations will
supersede the current confidentiality provisions under 45 CFR
1350.14(i).
DATES: In order to be considered, comments on this notice of proposed
rulemaking (NPRM) must be received on or before July 18, 1994.
ADDRESSES: Please address comments to Olivia A. Golden, Commissioner,
Administration on Children, Youth and Families, P.O. Box 1182,
Washington, DC 20013, Attention: David W. Lloyd, Director, National
Center on Child Abuse and Neglect.
FOR FURTHER INFORMATION CONTACT: David W. Lloyd, (202) 205-8586.
SUPPLEMENTARY INFORMATION:
Part I: Background and Authorization
This proposed rule sets forth the requirements for establishing and
maintaining confidentiality of child protective services records.
Maintaining confidentiality is important to protect the privacy and
rights of children and families in cases of suspected and actual child
abuse and neglect.
The Juvenile Justice Delinquency and Prevention Amendments, Public
Law 102-586, section 9, amended the Child Abuse Prevention and
Treatment Act (CAPTA), section 107(b)(4), as most recently reauthorized
by Public Law 102-295. The regulations in this NPRM implement the new
provisions of section 107(b)(4) of CAPTA, which directs the States to
provide for the confidentiality of CPS records, by revising 45 CFR
1340.14(i). The impetus behind this legislation was Congress' finding
that an undue burden was placed on the State process for investigating
child abuse and neglect under existing Federal regulations. The
legislative intent is to ensure protection against wholesale public
disclosure while enabling Federal, State and local government entities,
or their agents, to coordinate interagency communication needed to
assist in the protection of abused and neglected children (House
Education and Labor Committee Report 102-756).
Part II: Program Description and Intent of the Regulations
The National Center on Child Abuse and Neglect (NCCAN), within the
Administration on Children, Youth and Families, is the primary Federal
agency responsible for assisting States and communities with activities
related to the prevention, identification and treatment of child abuse
and neglect. NCCAN, as authorized by CAPTA, provides both discretionary
and formula grants to States, public agencies and nonprofit private
organizations. CAPTA section 107(b)(4), as amended by Public Law 102-
586, section 9, applies to the formula grants to States for child abuse
and neglect prevention and treatment programs. States and, by their
direction, local governments, administer CPS programs to protect and
assist children who are abused and neglected. In order to avoid further
harm to these children and to protect their privacy and the privacy of
their parents or guardians, it is important that their records and
identities be kept confidential except as to those persons or entities
with a need for the information that is directly related to achieving
the purposes of CAPTA, which are the investigation, prevention and
treatment of child abuse and neglect.
The existing regulations require that States provide for the
confidentiality of child abuse and neglect reports and CPS records.
They also give States the option of authorizing disclosure to selected
persons and agencies in order to carry out their activities. However,
in its findings, Congress noted that, while confidentiality of records
is important, there should not be absolute confidentiality to the
extent that communication among persons and entities working on
investigation, prosecution and service provision is obstructed. The
Congress noted that comprehensive and coordinated interagency
communication is needed to adequately provide protection for abused and
neglected children. Accordingly, the amendment was passed and these
proposed regulations were developed.
Proposed Regulation
The proposed regulations identify persons and entities that must be
able to obtain access to CPS records in order to effectively carry out
their responsibilities on behalf of children. The rationale for their
inclusion is provided in Part III below.
In addition to the required disclosures specified in the proposed
regulation, there are other persons and entities to which a State may
choose to provide access to confidential CPS records, under such
limitations and procedures as the State determines.
Allowing appropriate persons and entities to receive information
from the CPS records and communicate about these records with the CPS
workers helps serve children's needs. The Administration on Children,
Youth and Families, therefore, recommends that the States consider
authorizing the agencies and entities described below to have access to
the records in child abuse and neglect cases, in addition to those
which are explicitly enumerated as required disclosures in the proposed
regulation itself. States also may provide access to confidential CPS
records to other persons and entities that the States determine have a
need for such information directly related to achieving the purposes of
CAPTA, so long as such access does not conflict with restrictions set
forth in Federal statute or regulation. Please note that the persons
and entities identified in numbers (1) through (5) in the recommended
permissive disclosure section below are not in the mandatory disclosure
section of the proposed regulation only because such persons and
entities do not have a responsibility under law to protect children,
which is a requirement set forth in section 107(b)(4)(B) of CAPTA.
However, the Department strongly recommends that States permit
disclosure of CPS information to these persons and entities. All
persons and entities authorized by a State to have access to
confidential information must adhere to the conditions regarding
redisclosure. The Department particularly would like to invite public
comment about whether the recommended permissive disclosure list should
be included in the regulation.
There are two groups, namely, the news media and those conducting
research, as to whom we propose to permit limited disclosure. In each
instance, the State must determine, as the amended statute requires,
that disclosure would be ``directly related to the purposes of CAPTA.''
Because the statute requires that States provide for methods to protect
the rights of the child and the child's parents or guardians and
because of the substantial potential for harm to individuals, we
propose the restrictions discussed below.
With respect to the news media, disclosure must be limited to
confirmation of factual information regarding how the case was handled
that does not violate the privacy rights of the child's parent or
guardian. Examples of disclosable information include: confirmation
that a report was made; confirmation that an investigation has begun;
information with respect to the amount of time between the report and
the investigation; confirmation as to whether previous reports have
been made; and information on the outcome of the investigation. In
drafting these regulations, we considered whether disclosure of
additional information, such as the details of the alleged abuse or
neglect, should also be subject to disclosure. Since the proposed
regulation would permit broad disclosure to the organizations and
agencies responsible for oversight of the CPS agency as well as
investigation and care of the child, we concluded that further public
dissemination through the news media would not serve the purposes of
CAPTA.
With respect to research, we propose to authorize broad State
disclosure of all information, other than that identifying named
individuals, to any person, agency or organization that has been
authorized to conduct research as an agent of the State. However,
identification of individuals will not be permitted without the consent
of the child and parent, or representative, as well as the appropriate
State official. In drafting these proposed regulations, we have
considerd whether it is necessary to continue the requirement of
consent that is in current regulations. Although we recognize that the
identification of individuals can be important to longitudinal
research, or where in-depth interviews are required, and that the
consent requirement may preclude some research, the potential for harm
to the individual is significant. Accordingly, we propose to continue
to the requirement of consent.
The Department particularly would like to invite public comments on
these issues.
Recommended Permissive Disclosures
(1) In many States, entities other than a CPS agency are
authorized, but not mandated, to investigate reports of child abuse or
neglect. These entities need access to the records to determine how to
proceed. In addition, agencies recommending or determining a
disposition or course of treatment for an abused or neglected child or
to a person who is the subject of the report of child abuse or neglect
need to know what happened to that child in order to provide
appropriate services. Therefore, a properly constituted authority
(including multidisciplinary case consultation teams multidisciplinary
child protection teams and child advocacy centers) investigating a
report of known or suspected child abuse or neglect, or determining a
course of treatment and disposition for the child and family may be
allowed access to the records for these purposes.
(2) In order for a physician, mental health professional or
substance abuse program services provider, or an agency authorized by a
properly constituted authority to diagnose, care for, treat or
supervise (a) a child whom such service provider reasonably suspects
may be abused or neglected, or (b) a member of the child's family, or
(c) a person who allegedly abused or neglected the child, such service
provider may have access to the records and history of the case. Such
information facilitates coordination between the service provider and
the CPS agency. The existing regulations, at Sec. 1340.14(i)(2)(V),
include physicians as individuals that the State may authorize to
receive disclosures of child abuse and neglect. However, physicians are
not the only professionals who come in contact with abused and
neglected children, their families and the alleged abuser. Recognizing
the important role of mental health and substance abuse program service
providers in serving these groups, NCCAN recommends that these
professionals be afforded the same access to case records as
physicians.
(3) There have been a number of cases where alleged or convicted
perpetrators of child abuse/neglect have been released from custody
prior to adjudication or sentencing, or have been released on probation
or parole. At times, officials responsible for determining pre-trial or
pre-sentencing release status or for making sentencing decisions or
recommendations have known of the individual's past history regarding
child abuse or neglect allegations. Such information may be relevant in
setting pre-trial release, sentencing, and in determining the
conditions of probation or parole. Therefore, States may authorize
disclosure of CPS information to a properly constituted agency
responsible for the supervision of an alleged perpetrator of child
abuse and neglect.
(4) Research involving data in CPS records can provide important
information that will help government officials plan programs for
abused and neglected children and develop future policy directions.
Therefore, States may authorize disclosure to a person, agency or
organization engaged in a bona fide research or evaluation project who
has been authorized to conduct such research or evaluation as an agent
of the State. On the other hand, when a person, agency or organization
conducting research has not been so authorized, information identifying
the individuals named in a report or record shall be omitted. If such a
person or entity wishes to conduct in-depth examination of specific
individuals, or longitudinal investigations which require identifying
information is essential to the research or evaluation, the State must
then require that prior written permission be obtained from the child
or child's representative for release of information pertaining to him
or her, and prior written consent of the parents or guardian for
release of information pertaining to them. The appropriate State
official must also give prior written approval.
(5) In order to prepare a defense against charges of child abuse or
neglect, and as part of the individual's due process rights, a person
about whom a report has been made and/or his or her attorney, should
have access to relevant CPS records. Disclosure of the identify of the
reporter or any other person whose life or safety may be endangered,
however, is prohibited.
(6) In order to plan budgets and maintain oversight of CPS agency
functions, the CPS records might be helpful. Therefore, a State may
authorize the release of child abuse and neglect records to State or
local officials responsible for administration of the child protective
services system, or for oversight of the enabling or appropriating
legislation, or for compilation of statistical information on abused
and neglected children, their families or those who commit, or
allegedly commit, child abuse and neglect, who need such information in
the course of carrying out their official functions.
Part III: Discussion of Proposed Revisions to 45 CFR 1340.14(i)
Subparagraph (i)
This subparagraph reflects the Congressional amendment highlighting
its emphasis on the need for States to maintain the confidentiality of
CPS information, while providing for disclosure of information when
necessary. The existing regulations list discretionary disclosures,
some of which are incorporated into the proposed regulations as
required disclosures in subparagraph (2) below. The required
disclosures involve those persons and entities that are authorized to
receive the information by virtue of their roles and responsibilities
under law to protect children and whose ability to meet their
responsibilities would be impaired without receipt of the disclosed
information. The remaining persons and agencies listed in the existing
regulations are covered in the permissive disclosure section of this
preamble and remain in the category of persons and entities permitted
to receive the information. Subparagraph (1) allows States flexibility
in: (a) Authorizing agencies and entities to receive CPS information;
and (b) implementing the new requirements by either State statute or
administrative rule.
Records
The existing regulations interpret the statutory requirement of
``confidentiality of all records'' as providing for confidentiality of
``records concerning reports and reports of child abuse and neglect.''
Those agencies and entities authorized by the State to have access to
CPS records and those agencies and entities that must promptly receive
all relevant information in order to carry out their responsibilities
under law to protect children from abuse and neglect frequently require
access to a greater portion of the CPS record than the report.
Accordingly, the proposed regulation interprets the statutory reference
to ``records'' as including reports of child abuse and neglect, whether
or not such reports are determined to be substantiated or indicated and
the information pertaining to such reports, including the evidence upon
which the determination was made, and any information pertaining to the
child and other family members which is within the custody or control
of the CPS agency.
Redisclosure
Authorized recipients of confidential CPS information are bound by
the same confidentiality restrictions as the CPS agency. Thus, they
must respect the privacy rights of the children and families who are
the subjects of CPS reports and the persons who report suspected abuse
and neglect, and must use the information only for activities related
to the prevention and treatment of child abuse and neglect. Recipients
of such information are compelled by the proposed regulation to
maintain confidentiality and prevent redisclosure of the information to
other persons or entities, unless express authorization is given on a
case-by-case basis by the same authority that first disclosed the
information.
State Authorization
Under the existing regulations, States must enact statutes
requiring confidentiality of CPS records and reports of child abuse and
neglect and disclosure made to designated persons and agencies. Many
States have encountered difficulties in developing legislation
authorizing appropriate disclosures. State and local agencies have
repeatedly indicated that they are more effective and efficient when
they are able to invoke administrative rules. The proposed regulation
provides States with flexibility with respect to the policy-making
mechanisms for developing and implementing the authorized disclosure
provisions.
Subparagraph (2)
The statutory amendment explicitly requires States to provide for
disclosure to persons and entities that need the information to
effectively carry out their responsibilities under law to protect
children from abuse and neglect. The proposed regulations therefore
direct States to provide for disclosure of the records to persons and
entities with responsibilities under law to protect children from abuse
and neglect. Those persons and entities are described below in
subparagraphs (2)(i)-(2)(xi).
Subparagraph (2)(i)
In order to pursue cases for possible arrests, prosecution, and for
taking the child into custody for protective placement, persons who
review and investigate child abuse and neglect cases need the specific
information contained in the records. Some cases involve parties
previously reported as suspected perpetrators or victims of child abuse
or neglect. Child abuse and neglect records can significantly assist
the professionals in pursuing cases and promptly determining if an
arrest, placement of the child, or other action should be taken.
Without this information each report would be treated as a new case,
family histories of violence would not be addressed, and children might
not be adequately protected.
Subparagraph (2)(ii)
The Developmental Disabilities Assistance and Bill of Rights Act
(Act), 42 U.S.C. 6042(a)(2)(B), mandates that in order for a State to
receive assistance under the Act it must develop a ``Protection and
Advocacy'' (P&A) system to protect and advocate for the rights of
persons with developmental disabilities that has the authority to
investigate incidents of abuse and neglect for this population. In
order to allow for the implementation of that provision, the P&A
authority is included on the mandatory disclosure list of the NPRM.
Subparagraph (2)(iii)
In order to place a child in an appropriate protective custodial
arrangement, the agency or entity making the placement needs
information on the history, severity and circumstances of the child
abuse and neglect in order to ascertain the child's needs. Therefore,
those authorized to place the child must be provided with these
records.
Subparagraph (2)(iv)
In order for a child abuse and neglect case to be prosecuted, or
for the CPS agency to be represented as a party, the prosecuting
attorney would need the records for use in the preparation of the case.
Subparagraph (2)(v)
There is a wide variety of legal proceedings in which some aspect
of child abuse and neglect may be relevant; these include allegations
of abuse during a family relations case (domestic violence,
dissolution, child custody), and/or criminal case. A court adjudicating
such cases often needs information pertaining to allegations or
findings of child abuse and neglect in order to properly resolve the
issue before it. However, the entire CPS record may not be necessary
for adjudication and/or disposition of the case. In some cases, there
may be no evidence that the information contained in the record is
legally relevant to the issue to be decided. In adjudicating cases in
which child abuse and neglect becomes an issue, the judge should
inspect the CPS records in chambers for a determination of which, if
any, portions are legally relevant and must limit disclosure to that
information.
Subparagraph (2)(vi)
To protect the child's interests and to ensure that the best
services to protect the child's safety and welfare are being provided,
the child, or the child's authorized representative, needs to be able
to review the CPS record and provide additional factual information as
necessary for the record.
Subparagraph (2)(vii)
When the coroner or medical examiner is determining the case of a
child's death, information contained in the CPS record can be of great
assistance. Therefore, the coroner or medical examiner must have access
to CPS records, when needed.
Subparagraph (2)(viii)
Some States have enacted legislation authorizing the creation of
child fatality review teams on a statewide, regional or county basis.
The purpose of these teams is to review child fatalities in the State
and to propose methods of preventing such deaths. In order to carry out
this mission, a team needs the information contained in CPS records.
Subparagraph (2)(ix)
Some cases of child abuse and neglect create additional problems in
investigation or adjudication when the families move out of State. It
is essential that the CPS records from the initial jurisdiction be
available to the specified authorities in the new jurisdiction in order
to continue or pursue the best interests of the child and his/her
protection.
Subparagraph (2)(x)
Many abused and neglected children are placed in foster care or are
adopted. Because these children often exhibit problematic behaviors and
emotional reactions, they need caretakers who are able to handle their
special needs and protect them from further abuse. In order for a
foster or adoptive family to understand the formerly abused and
neglected child, and to prepare itself for handling the child's needs,
it is necessary that the family be provided with specific information
about the child's history of abuse and/or neglect. Therefore, under the
proposed regulation, States will be required to disclose to prospective
foster and adoptive parents the abuse and neglect history of a child
being placed with them.
Subparagraph (2)(xi)
Persons responsible for a child's welfare outside the child's home
sometimes abuse and neglect children. Some of these cases are
perpetrated by individuals with histories of child abuse, either in or
out of their own homes. In order to protect the children within their
charge, information on child abuse and neglect records must be made
available upon request to persons and entities with a legal duty to
protect children from child abuse and neglect for the purpose of
carrying out background and/or employment and volunteer-related
screening of current and prospective employees or volunteers who are or
may become engaged in contact with children or working in a facility
providing services to children.
Subparagraph (3)
State officers and CPS workers have often expressed frustration in
trying to follow cases of children whose families make interstate
moves. This subparagraph requires States to share information with one
another in these cases. In addition, this particular subparagraph
includes two groups who handle child abuse and neglect cases under
their own jurisdictions--military communities and Indian Tribal
Organizations. Requiring States to share CPS information with one
another as well as with military communities and Indian Tribal
Organizations will encourage more comprehensive coordination and
communication in an effort to protect children.
Subparagraphs (4) and (5)
These subparagraphs remain essentially the same and are contained
in the existing regulations together as subparagraph (4). The proposed
subparagraph (4) reiterates the requirement that the child abuse and
neglect reporter be able to receive a summary of the outcome of an
investigation. The proposed subparagraph (5) repeats the existing
requirement that nothing in Sec. 1340.14 affects a State's laws or
procedures concerning the confidentiality of its criminal court or its
criminal justice system, and that regulations regarding confidentiality
should not be interpreted as reflections or modifications of the
State's laws and procedures regarding confidentiality in other
situations.
Subparagraph (6)
This subparagraph, subparagraph (5) in the existing regulations,
remains unchanged. The purpose of this requirement is to allow for
review of the records by the Department of Health and Human Services
and the Comptroller General of the United States.
Subparagraph (7)
As noted in the discussion under ``Proposed Regulation'' above, CPS
information that can be disclosed to the media is limited to certain
factual information. Additional CPS information can be obtained only
with the written permission of the involved individuals or their
representatives.
Subparagraph (8)
This subparagraph clarifies the connection between the
confidentiality sections of CAPTA and Titles IV-E and IV-B of the
Social Security Act. Title IV-E requires that States provide safeguards
restricting the use and/or disclosure of information regarding children
served by Title IV-E foster care. A 1991 amendment to section 471(a)(8)
added subsection (E), which allows disclosure of child abuse and
neglect information about children receiving aid under either Title IV-
B or IV-E to appropriate authorities pursuant to section 471(a)(9).
Section 471(a)(9) requires Title IV-E agencies to report suspected
child abuse and neglect cases to CPS agencies.
Records maintained under both Title IV-E and Title IV-B (which is
subject by Departmental regulation to the Confidentiality provisions in
45 CFR 205.50) are to be safeguarded against the unauthorized
disclosure of information for financial assistance programs. Section
205.50(a)(1)(C)(ii) states that the release or use of information
concerning individuals applying for or receiving financial assistance
is restricted to persons or agencies that are subject to standards of
confidentiality comparable to those of the agency administering the
financial assistance programs.
CPS records may be subject to the Title IV-B and Title IV-E
confidentiality provisions and there may be instances where a record is
subject both to disclosure under CAPTA and to the confidentiality
requirements under Sec. 205.50. In light of the fact that CAPTA
disclosure provisions are more specific than the statutory provisions
which are the basis of Sec. 205.50, as well as the fact that the CAPTA
confidentiality provisions were more recently enacted, the Department
believes that the CAPTA provisions would prevail in the event of a
conflict. Accordingly, the proposed regulation provides for disclosure
``notwithstanding'' the provisions of Sec. 205.50.
Subparagraph (9)
This subsection requires that the privacy rights of the child and
the child's parents or guardians be protected when research and
evaluation projects are being conducted by individuals or organizations
that are not agents of the State.
Subparagraphs (10) and (11)
As noted under ``Redisclosure'' above in subparagraph (1), those
who receive information from CPS records must keep the information
confidential to the same degree as the CPS agency. Accordingly, States
are required to make the unauthorized disclosure or redisclosure of CPS
records a criminal offense.
Subparagraph (12)
Child abuse and neglect may be perpetrated by individuals who might
do harm to persons involved in reporting such abuse and neglect.
Accordingly, this subsection requires that the identity of the reporter
and other individuals who might be endangered by such disclosure be
protected.
Part IV: Impact Analysis
Executive Order 12866
Executive Order 12866 requires that regulations be reviewed to
ensure that they are consistent with the priorities and principles set
forth in the Executive Order. The Department of Health and Human
Services has determined that this rule is consistent with these
priorities and principles. An assessment of the costs and benefits of
available regulatory alternatives (including not regulating)
demonstrated that the approach taken in the regulation is the most
cost-effective and least burdensome while still achieving the
regulatory objectives.
Regulatory Flexibility Act of 1980
Consistent with the Regulatory Flexibility Act of 1980 (5 U.S.C.
ch. 6), the Department tries to anticipate and reduce the impact of
rules and paperwork requirements on small businesses. For each rule
with a ``significant economic impact on a substantial number of small
entities'' an analysis is prepared describing the rule's impact on
small entities. Small entities are defined by the Act to include small
businesses, small non-profit organizations, and small governmental
entities.
This proposed rule would not affect small entities other than to
allow identified entities access, in accordance with the regulations,
to certain files on children who are victims of abuse or neglect. For
this reason, the Secretary certifies that this rule will not have a
significant impact on a substantial number of small entities.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1990, Public Law 96-511, all
Departments are required to submit to the Office of Management and
Budget (OMB) for review and approval any reporting or recordkeeping
requirements in a proposed and final rule. This proposed rule does not
contain information collection requirements or increase the Federal
paperwork burden on the public or private sector. Therefore, no
submission to OMB is required.
List of Subjects in 45 CFR Part 1340
Child welfare--Grant programs--health, Grant programs--social
programs, Individuals with disabilities, Reporting and recordkeeping
requirements, Research, Technical assistance, Youth.
(Catalog of Federal Domestic Assistance Program Number 93.966, Child
Abuse and Neglect State Grants)
Dated: March 23, 1994.
Mary Jo Bane,
Assistant Secretary for Children and Families.
Approved: April 9, 1994.
Donna E. Shalala,
Secretary.
For the reasons set forth in the preamble, we are proposing to
amend 45 CFR part 1340 as follows:
PART 1340--CHILD ABUSE PREVENTION AND TREATMENT ACT
1. The authority citation continues to read as follows:
Authority: 42 U.S.C. 5101 et seq.
2. Section 1340.14(i) is revised to read as follows:
Sec. 1340.14 Eligibility requirements.
* * * * *
(i) Confidentiality.
(1) The State must provide by statute or administrative rule with
the force and effect of law for methods to preserve the confidentiality
of all child abuse and neglect records in order to protect the rights
of the child and of the child's parents or guardians, including methods
to ensure that disclosure and redisclosure of information concerning
child abuse and neglect involving specific individuals is made only to
persons or entities that the State determines have a need for such
information directly related to the purposes of the Act, and under
procedures and limitations set forth by the State.
(2) The State must provide for the prompt disclosure of all
relevant information to any Federal, State or local governmental
entity, or any agent of such entity, with a predetermined need for such
information in order to carry out its responsibilities under law to
protect children from abuse and neglect. Therefore, the State must
provide for the disclosure of all relevant information concerning
reports of child abuse and neglect to the persons or entities
authorized by law to receive such information. The entities include,
but are not limited to:
(i) The agencies or organizations (including its designated
multidisciplinary case consultation teams, law enforcement entities,
and child protective services agencies) mandated by Federal or State
law to receive and investigate reports of known and suspected child
abuse and neglect;
(ii) The State Protection and Advocacy agency as authorized by
the Developmental Disabilities Act, Public Law 101-496, 42 U.S.C.
6042(a)(2)(B);
(iii) A person legally authorized to place a child in protective
custody when the person has before him/her a child whom he/she
reasonably suspects may be abused or neglected and the person
requires the information in the report or record in order to
determine whether to place the child in protective custody;
(iv) The public prosecuting attorney representing the Child
Protective Services agency when relevant and necessary to a
specified pending case;
(v) The parties to a court or grand jury proceeding in which
information in the records is legally relevant and necessary for
determination of an issue before such court, provided that prior to
such disclosure the judge has reviewed the records, in camera, has
determined the relevancy and necessity of such disclosure, and has
limited disclosure to such legally relevant information under an
appropriate protective order;
(vi) A child named in the report or record alleged to have been
abused or neglected, or his/her legal guardian, or his/her legal
representative, including an attorney, guardian ad litem, or Court
Appointed Special Advocate (CASA) appointed to represent the child's
interests in a pending case;
(vii) The coroner or medical examiner when such individual is
determining the cause of death of a child;
(viii) A child fatality review team authorized by law;
(ix) Any of the authorized entities in other States or military
enclaves or Indian Tribal Organizations where the child, family or
person about whom a report has been made may be found;
(x) Prospective foster and adoptive parents prior to placing a
child in their care; and
(xi) Persons and entities with a legal duty to protect children
from child abuse and neglect when carrying out background and/or
employment and volunteer-related screening of current and
prospective employees or volunteers who are or may become engaged in
contact with children.
(3) All regulations in this section are equally applicable to and
between States. Additionally, disclosure to an Indian Tribal
Organization or military enclave may be made only when the entity
agrees to the restrictions on redisclosure specified in (10) below.
(4) Nothing in this section shall be interpreted to prevent a
properly constituted authority from summarizing the outcome of an
investigation to the person or official who reported the known or
suspected instance of child abuse or neglect.
(5) Nothing in this section shall be interpreted to affect a
State's law or procedures concerning the confidentiality of its
criminal court or its criminal justice system.
(6) The Department of Health and Human Services and the Comptroller
General of the United States or any of their representatives shall have
access to records, as required under 45 CFR 74.24.
(7) Disclosure of Child Protective Services (CPS) information to
the media shall be limited to confirmation of factual details with
respect to how the case was handled that do not violate the privacy
rights of the child and the child's parents or guardians. Further
confidential information may be released to the media only with the
express written permission of the individuals involved, or their
representatives.
(8) Notwithstanding the provisions set forth in 45 CFR 205.50, the
Act confidentiality requirements prevail when a CPS record is also
subject to the confidentiality requirements under Title IV-E and/or the
requirements under Sec. 205.50.
(9) When bona fide research or evaluation projects are being
conducted by a person, agency or organization not authorized as an
agent of the State, information identifying the individuals named in a
report or record shall be omitted. If identifying information is
essential to the research or evaluation, prior written approval shall
be obtained from the appropriate State official. In addition, consent
of the child or child's representative shall be obtained before release
of identifying information pertaining to the child, and prior written
consent of the parents or guardian or their representative shall be
obtained before release of identifying information pertaining to them.
(10) Authorized recipients of CPS information must maintain
confidentiality and prevent redisclosure of information to other
persons or entities, unless written authorization is first obtained by
the authority that originally disclosed the information. This
authorization must be obtained on a case-by-case basis.
(11) The State must provide by statute that the unauthorized
disclosure or redisclosure of such confidential information is a
criminal offense.
(12) The person or agency making CPS information available to
authorized recipients shall withhold the identity of the person
reporting known or suspected child abuse and neglect as well as the
identity of any other person whose life or safety may be endangered by
such disclosure.
[FR Doc. 94-12087 Filed 5-16-94; 8:45 am]
BILLING CODE 4184-01-M
