Obtaining using and disclosing confidential information
This presentation is the property of its rightful owner.
Sponsored Links
1 / 31

Obtaining, Using, and Disclosing Confidential Information PowerPoint PPT Presentation


  • 84 Views
  • Uploaded on
  • Presentation posted in: General

Obtaining, Using, and Disclosing Confidential Information. Fundamentals of Social Services Law Institute of Government The University of North Carolina at Chapel Hill November, 2004. What Does Confidentiality Mean?. Nature of information Private, personal, sensitive, embarrassing

Download Presentation

Obtaining, Using, and Disclosing Confidential Information

An Image/Link below is provided (as is) to download presentation

Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author.While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server.


- - - - - - - - - - - - - - - - - - - - - - - - - - E N D - - - - - - - - - - - - - - - - - - - - - - - - - -

Presentation Transcript


Obtaining using and disclosing confidential information

Obtaining, Using, and Disclosing Confidential Information

Fundamentals of

Social Services Law

Institute of Government

The University of North Carolina at Chapel Hill

November, 2004


What does confidentiality mean

What Does Confidentiality Mean?

  • Nature of information

    • Private, personal, sensitive, embarrassing

      • Disclosure might injure subject

  • Nature of relationship

    • Info communicated in confidence

      • Expectation that info won’t be disclosed to others

  • Ownership of information

    • Individual right to privacy and personal autonomy

      • Choose whether, when, & to whom info disclosed


What does confidentiality mean1

What Does Confidentiality Mean?

  • Legal rule

    • Legal rights & duties

      • Prohibitions, restrictions, protections, & remedies

    • Acquisition, use, or disclosure

      • Specific type of information

      • Particular persons

      • Specific circumstances

  • Rarely, if ever, absolute

    • Meaningless in abstract


Legal analysis of confidentiality

Legal Analysis of Confidentiality

  • Three contexts

    • Disclosing confidential information

      • Using confidential information

      • Obtaining confidential information

  • Two questions

    • Is the info confidential?

      • Identify & determine scope of legal rule

    • Exception that allows or requires disclosure?

      • Apply legal rule to context


Legal analysis of confidentiality1

Legal Analysis of Confidentiality

  • Object

    • What info is confidential?

      • Nature, subject, source

      • Form, format, location

  • Subject

    • To whom does info pertain?

      • Ownership, consent, identification

  • Purpose

    • Why is disclosure restricted?

      • Personal & public interests


Legal analysis of confidentiality2

Legal Analysis of Confidentiality

  • Applicability

    • Who is subject to confidentiality restrictions?

  • Legal authority

    • Does it “trump” other rules?

      • Create enforceable rights & duties?

      • Legal sanctions for violation?

  • Exceptions

    • Internal & external

    • Explicit & implicit


Legal analysis of confidentiality3

Legal Analysis of Confidentiality

  • Disclosure

    • When 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?


Some general rules of thumb

Some General Rules of Thumb

  • Info is not confidential

    • Unless confidential as per specific legal rule

  • Confidentiality is never absolute

    • Always some exception

      • Confidential in some contexts but not others

  • Confidential info may be used or disclosed

    • With subject’s consent

    • Pursuant to court order

    • To properly administer program

    • If subject not identified


Some myths about confidentiality

Some Myths About Confidentiality

  • Confidentiality always “follows” the info

    • Always 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


Constitutional right to privacy

Constitutional Right to Privacy?

  • U.S. & N.C. Constitution

    • Whalen v. Roe(US 1977)

    • Treants v. Onslow County(NC App 1986)

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

  • Government agencies

    • Acquisition, use, disclosure

      • Personal information regarding individuals

    • Balance government need vs. personal interest


Common law right to privacy

Common Law Right to Privacy?

  • Tortious invasion of personal privacy

    • No claim for public disclosure of private info

      • Possible claim for emotional distress

    • Hall v. Post(NC 1989)

      • Woodruff v. Miller(NC App 1983)


Federal confidentiality rules

Federal Confidentiality Rules

  • Federal government info & records

    • Federal Freedom of Information & Privacy Acts

      • Do not apply to state & local government

  • Federal laws of general application

    • May preempt or “trump” state law (42 CFR 2)

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

  • Federal funding conditions

    • May or may not create enforceable individual rights

      • FERPA, CAPTA, etc.


Public records law gs 132 1

Public Records Law (GS 132-1)

  • Public record

    • Recorded info (regardless of format)

      • Document, computer, digital, audio, photo, email

    • Made or received in connection with public business

    • State & local government agencies & officials

      • Private contractors & agents

  • Any person

    • Inspect & copy for any purpose

      • Reasonable procedures & fees


Public records law gs 132 11

Public Records Law (GS 132-1)

  • Exceptions

    • Public Records Law (express)

    • Other statutes (express or implied)

      • Confidential = not a public record

      • Not a public record ≠ confidential

  • Procedures

    • Redacting info from public records

    • Retention & destruction of public records


Privileged communications

Privileged Communications

  • Communication

    • By individual to doctor, attorney, clergy, spouse, etc.

      • Within scope of confidential relationship

  • Inadmissible in legal proceeding

    • Unless waived, exception, or court order

  • Disclosure in other contexts

    • May or may not be OK

      • Technically, privileged ≠ confidential

    • Exceptions allowing or requiring disclosure


Social services records

Social Services Records

  • GS 108A-80 & 10A NCAC 69

    • Unlawful for any person to

    • Obtain, use, or disclose

      • Purpose not directly related to social services

    • Any 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


Social services records1

Social Services Records

  • With client’s consent

    • Written, signed, informed, voluntary

  • Without client’s consent (notice)

    • Required by court order

    • Required by federal or state law

    • Research (if info de-identified)

    • Federal & state programs

      • Unless prohibited by source or legal rule


Special dss confidentiality rules

Adoption

APS

CPS

Identity of reporter

DSS investigation

CAPTA

Central registry

Child support (IV-D)

Child welfare services

Child protection

Foster children

Criminal history checks

DSS employees

Food stamps

Medicaid

TANF

Special DSS Confidentiality Rules


Dss disclosure in child welfare

NC law

DA & law enforcement

Crime (not parent, etc.)

Fatality (central registry)

DHHS & SBI

Child day care

Sexual abuse in day care

Person who reports abuse Child protection team Public disclosure (request)

Fatality or near fatality

Other agencies

Protective services

Serve juvenile

Juvenile cases

GAL, child, child’s attorney

Discovery

Court order

CAPTA

Individual subject CPS report

Court or grand jury

Others for legitimate purpose

DSS Disclosure in Child Welfare


Who may consent

General rule

Person who is subject of info

Client, patient, employee, informant

Incapacity to consent

Incompetent

Mentally impaired

Minor child

Mature minor

Deceased

Consent obo client

GS 108A-80

Guardian of incompetent

DSS director (foster child)

Other responsible person

Child’s parent (???)

HIPAA

Personal representative

GS 122C

Legally responsible person

FERPA

Parent, guardian, ILP

Who May Consent?


Responding to subpoenas

Responding to Subpoenas

  • NC Civil Procedure Rule 45

    • Civil & criminal proceedings

      • Issued by judge, clerk, attorney

      • NC court (or federal court)

    • Subpoena to appear & testify

      • Court (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


Responding to subpoenas1

Responding to Subpoenas

  • Appear, testify & produce

    • Disclosure 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 respond

    • Contempt


Disclosure in child custody cases

Disclosure in Child Custody Cases

  • Subpoena

    • Insufficient for disclosure

      • Without consent or court order

    • Motion to quash or written objection

    • Ritter v. Kimball (NC App 1984)

      • Ask judge to review in camera

      • Balance public & private interests

      • Redact info (e.g. informant’s identity)

      • Protective order prohibiting redisclosure


Disclosure in criminal cases

Disclosure in Criminal Cases

  • Criminal investigation

    • Special 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 & hearing

    • In camera inspection by judge

      • Proper administration of justice


Disclosure in criminal cases1

Disclosure in Criminal Cases

  • Exculpatory evidence

    • Pennsylvania v. Ritchie(US 1987)

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

    • Subpoena or court order

      • Defense counsel

    • Notice & opportunity for hearing

      • Plausible showing regarding exculpability

      • In camera review by superior court judge

    • Favorable to defendant & material to issue of guilt

      • Credibility of witness


Disclosure to dss in child welfare

Disclosure to DSS in Child Welfare

  • Reporting suspected abuse & neglect

    • GS 7B-310

      • Overrides (almost all) state law privileges

      • Doesn’t “trump” federal law

  • CPS investigation & services

    • GS 7B-302(e)

      • Overrides privilege (except attorney-client)

      • Does not “trump” federal law

      • Criminal investigation withheld with court order


Disclosure to dss in child welfare1

Disclosure to DSS in Child Welfare

  • Information sharing

    • GS 7B-3100 & 28 NCAC 01A.0301 & .0302

      • Human services, school, law enforcement

      • Other agencies designated in administrative order

    • Relevant to pending juvenile proceeding

    • Protect juvenile or others

      • Improve juvenile’s educational opportunities


Alcohol substance abuse

Alcohol & Substance Abuse

  • 42 CFR 2

    • Alcohol or drug treatment program

      • Any info that identifies person as patient

    • Exceptions

      • Mandatory report of child abuse & neglect

      • Patient consent

      • Court order


Ferpa

FERPA

  • 34 CFR 99

    • Federally-funded educational institutions

      • Student info in “educational record”

      • Not info based on personal knowledge

    • Exceptions

      • Consent

      • Subpoena

      • Court order


Hipaa

HIPAA

  • 45 CFR 164

    • Health care providers & health plans

      • Physical or mental condition, treatment, payment

    • Exceptions

      • Report child abuse & neglect

      • Required by state law

      • Consent

      • Subpoena

      • Court order


Obtaining using and disclosing confidential information1

Obtaining, Using, and Disclosing Confidential Information

Fundamentals of

Social Services Law

Institute of Government

The University of North Carolina at Chapel Hill

November, 2004


  • Login