(Revision. 1/1/14)
42 U.S.C. 671(a)(8) State Plan for Foster Care and Adoption Assistance (Title IV-E)
42 U.S.C. 5106a Child Abuse Prevention and Treatment Act
25 U.S.C. 1901-1951 Indian Child Welfare Act of 1978 (P. L. 95-608)
P.L. 104-191 Health Insurance Portability and Accountability Act (HIPAA)
45 CFR 160-164 HIPAA regulations
45 CFR 205.50 Safeguarding Information for the Financial Assistance Programs
AS 18.50.500 – 510 Information Regarding Biological Parents
AS 24.55.160 Investigation Procedures (Ombudsman)
AS 25.23.150 Confidential Nature of Hearings and Records in Adoption Proceedings
AS 40.25.110-120 Public Records
AS 40.25.220 Definitions (Public Records)
AS 45.48.010-990 Personal Information Protection Act
AS 47.10.092 Parental Right to Disclose Information
AS 47.10.093Disclosure of Agency Records
AS 47.17.040 Central Registry; Confidentiality
AS 47.32.180 Confidentiality; Release of Certain Information
6 AAC 96 Public Information
7 AAC 54.10-150 Privacy of Client Records: Child Protection Services
To provide guidance regarding the release of confidential information.
Client Information must be kept confidential and may be disclosed only when necessary for:
the administration of state plans or programs under the Social Security Act parts A, B, D, or E or titles I, V, X, XIV, XVI, XIX, or XX or the administration of any other federal or federally assisted program that provides assistance, in cash or in kind, or services, directly to individuals on the basis of need;
any investigation, prosecution, criminal or civil proceeding, or audit conducted in connection with the administration of any such plan or program; or
required reporting of suspected child abuse or neglect.
Physical Health and Mental Health Information is subject to the same confidentiality rules as other case information, except that the following additional rules apply to physical and mental health information that is used to make decisions about an individual (for example a mental health evaluation of a parent that is used in making a decision about whether their child should be returned home). The rules apply both to information which originates within the state agency (OCS) and to information that OCS staff has received from another agency or Tribe.
An individual has a right of access to inspect and obtain a copy of health information about themselves that is used to make decisions about them, except for psychotherapy notes or information that is compiled for, or for use in a civil, criminal, or administrative action or proceeding (this includes an open Protective Services Report Safety Assessment).
A request to access information may be denied for the following reasons without providing the individual an opportunity to request that the denial be reviewed:
the request is for psychotherapy notes or information that is compiled for, or for use in a civil, criminal, or administrative action or proceeding (including an open CPS initial assessment); or
the information was obtained from someone other than a health care provider under a promise of confidentiality and the access requested would be reasonably likely to reveal the source of the information.
A request to access information may be denied for the following reasons, but the individual must be given an opportunity to request that the denial be reviewed by a licensed health care professional who is designated by the OCS to act as a reviewing official and who did not participate in the original decision to deny:
a licensed health care professional has determined, in the exercise of professional judgment, that the access requested is reasonably likely to endanger the life or physical safety of the individual or another person; or
the requested information makes reference to another person (unless such other person is a health care provider) and a licensed health care professional has determined, in the exercise of professional judgment, that the access requested is reasonably likely to cause substantial harm to the other person; or
the request for access is made by the individual’s personal representative and a licensed health care professional has determined, in the exercise of professional judgment, that the provision of access to such personal representative is reasonably likely to cause substantial harm to the individual or another person.
d If it is determined that the information is not used to make a decision about the individual and the information originates with another agency, the individual may be referred to that agency.
Specific health information about children in state custody must be provided to the foster parent or other care provider at placement, as outlined in sections 6.3.1 Medical, Dental, and Vision Care and 6.3.2 Mental Health Care/ Administration and Oversight of Psychotropic Medication.
Physical health and mental health information about a parent may be released to a foster parent or other care provider only to the extent that is necessary in order for the provider to provide care for the child and safety for the child and the care provider.
Indian Children’s Adoption Records:
When an Indian child who has been adopted reaches the age of 18, he/she may petition the court that entered the final adoption decree, and the court shall inform the individual of the Tribal affiliation, if any, of the individual’s biological parents and provide such information as may be necessary to protect any rights flowing from the individual’s Tribal affiliation.
In addition, in the adoption of an Indian child, the Secretary of the Interior has on file:
the name and Tribal affiliation of the child;
the names and addresses of the biological parents;
the names and addresses of the adoptive parents; and
the identity of any agency having files or information relating to such adoptive placement.
Upon the request of an adopted Indian child over the age of eighteen, the adoptive parents of an Indian child, or an adopted Indian child’s Tribe, the Secretary will disclose such information as may be necessary for:
the enrollment of the Indian child in the Tribe in which the child may be eligible for membership;
the determination of any rights or benefits associated with that membership.
If the Secretary's file contains an affidavit from the biological parent(s) requesting that their identity remain confidential, the Secretary must ensure that confidentiality is maintained. In those cases where an affidavit of anonymity is on file, the Secretary will certify to the Indian child's Tribe, where the information warrants, that the child's parentage and other circumstances of birth entitle the child to enrollment under the criteria established by such Tribe.
In addition, the Indian Child Welfare Act requires that a record of each adoptive placement be maintained documenting the efforts to comply with the placement preferences specified in the Act. This record shall be made available at any time at the request of the Secretary of the Interior or the Indian child's Tribe.
No information obtained by OCS in the discharge of its agency duties may be disclosed directly or indirectly to anyone without the court's permission, except as provided in 7 AAC 54, AS 47.10.092(a), AS 47.10.093.
Protected Information: Protective services reports (PSRs) and reports of initial assessments for children who are the subject of a CINA petition are protected and may only be disclosed for use by appropriate governmental and Tribal agencies with child protection functions, inside and outside the state, in connection with investigations or judicial proceedings involving child abuse, neglect, or custody. This does not apply to the report that the OCS is required to furnish to the Department of Law under AS 47.17.025.
CINA Proceedings: If a child is the subject of a CINA proceeding, OCS must provide appropriate information to the following agencies or individuals (what is appropriate information to disclose must be decided on a case-by-case basis and depends on the purpose of the information shared and the function of the agency or individual to receive the disclosed information -- see the matrix at the end of this section for further guidance):
The child’s guardian ad litem.
A person or agency asked by OCS or the legal custodian to provide consultation or services for a child. The information to be provided is limited to that information necessary to enable the provision of the service requested.
An out-of-home care provider with whom OCS has placed the child. All available information that will enable the caretakers to provide appropriate care for the child and to protect the safety of the child and the safety and property of family members and visitors to the home must be provided.
A school to enable the school to provide appropriate counseling and support services to the child, to protect the child, and to protect the safety of school students and staff.
A government/Tribal agency as necessary for OCS to obtain assistance in its initial assessment or to obtain physical custody of the child, or as required by law.
A law enforcement agency as necessary for the protection of any child or for the actions necessary by that agency to protect the public safety.
A member of a multidisciplinary CPS team to assist in the performance of their duties.
The state medical examiner.
A mandatory reporter under AS 47.17.020 to inform the reporter that the initial assessment of the PSR made by that person was completed and of action taken to protect the child.
The child support enforcement agency as necessary to establish and collect child support for the child.
A parent, guardian, or caregiver of a child or an entity responsible for ensuring the safety of children as necessary to protect the child.
A review panel established by the department for the purpose of reviewing the actions taken in a specific case.
A child placement agency licensed under AS 47.32 as necessary to provide services for a child who is the subject of the case.
A state or municipal agency that is responsible for delinquent minors, as may be necessary for the administration of services, protection, rehabilitation, or supervision of a child or for actions by the agency to protect the public safety. However, a court may review an objection made to a disclosure under this paragraph.
Disclosure of Information to Certain Officials:
Information concerning a child or the child’s family must be disclosed to the Governor, Lieutenant Governor, and Commissioner of Family and Community Services, who are responsible for OCS, and to the ombudsman under AS 24.55. In addition, in accordance with AS 47.10.092(a), information concerning a child or the child’s family must be disclosed to a legislator or staff, and to the Commissioners of the Departments of Administration and Public Safety or their staff, if a parent or legal guardian has disclosed confidential or privileged information about the child to that official. The official must have evidence that the parent or guardian has requested assistance in the case.
OCS must respond to a request from an official listed above within five working days of receiving the request, or by a later date specified in the request, by providing access to all or part of the information requested or by providing the specific citation to a federal or state law that prohibits disclosure of all or part of the information requested.
An ombudsman who is conducting an investigation may have access at all times to OCS records, except records that fall under Attorney-Client Privilege.
Disclosure of Information to the Public:
The Commissioner of Family and Community Services or the Commissioner of Administration may disclose to the public, upon request, confidential information addressed in 2) below, when
the parent or guardian of a child who is the subject of one or more PSR under AS 47.17 has made a public disclosure concerning the department's involvement with the family;
the alleged perpetrator named in one or more protective services reports under AS 47.17 has been charged with a crime concerning the alleged abuse or neglect; or
abuse or neglect has resulted in the fatality or Near Fatality of a child who is the subject of one or more protective services reports under AS 47.17.
The department may publicly disclose information pertaining to a child or an alleged perpetrator named in a PSR described under 1) above, or pertaining to a household member of the child or the alleged perpetrator, if the information relates to a determination, if any, made by the department regarding the nature and validity of a protective services report under AS 47.17 or to the department's activities arising from the department's initial assessment of the report. The commissioner
shall withhold disclosure of the child's name, picture, or other information that would readily lead to the identification of the child if the department determines that the disclosure would be contrary to the best interests of the child, the child's siblings, or other children in the child's household;
after consultation with a prosecuting attorney, shall withhold disclosure of information that would reasonably be expected to interfere with a criminal investigation or proceeding or a criminal defendant's right to a fair trial in a criminal proceeding.
Upon request for information about child abuse or neglect that resulted in the fatality or near fatality of a child, the department will, subject to the confidentiality requirements of the Health Information Portability and Accountability Act and 2) above, disclose the following information:
the cause of and circumstances regarding the fatality or near fatality;
the age and gender of the child;
information describing any previous reports or child abuse or neglect investigations that are pertinent to the child abuse or neglect that led to the fatality or near fatality;
the result of any such investigations; and
the services provided by and actions of the State on behalf of the child that are pertinent to the child abuse or neglect that led to the fatality or near fatality.
OCS records which are not confidential must be made available to the public upon request in accordance with 6 AAC 96 Public Information.
Disclosure of Information to Tribes:
Child Not in Custody: If the release of information is in the child’s best interest, OCS may release Child Protection Information about a non-custody child to a Tribe or Tribal organization:
to assist in an initial assessment if OCS is asking for the Tribe’s assistance; or
to aid in providing services to, or facilitating placement of, a child if the Tribe is providing services to the child.
Child in Custody: In any case involving an Indian child, the Indian child's Tribe is a primary resource for consultation services for the child and family as described in (B)(1)(b)(2) below. Disclosure of information to the Tribe for these purposes is governed by the Indian Child Welfare Act (ICWA) and the Alaska Rules of Civil Procedure, AS 47.10.005 et. seq, and 7 AAC 54.010 et. seq.
Intervening Tribe: If the Indian child's Tribe has intervened, the Tribe is a Party to the Case and is entitled to the same type of information as any other party.
Non-Intervening Tribe:
An Indian child’s Tribe that has not intervened, joined in OCS’s initial assessment, or undertaken its own investigation is not entitled to information about the child unless release of information to the Tribe is ordered by the court, except that OCS will release the child’s placement history to the Tribe upon request. The non-intervening Tribe is also entitled to Formal Notice of certain court hearings and placement changes.
OCS may release child protection information to a non-intervening Tribe to aid in providing services to or facilitating placement of a child if the Tribe is providing services to the child and release of information is in the child’s best interest.
Release of Information to Native Corporations:
When OCS takes custody of a child who is a member of a Native corporation, OCS may notify the corporation that the child has been taken into custody. OCS may summarize the content of a court order, but the actual court order may not be released.
OCS may not send lists of all children in custody to a Native corporation.
Child's Right to Privacy: A child's right to privacy is not compromised by becoming a client of OCS or the subject of a CINA petition. See 7 AAC 54.050(b) and 7 AAC 54.060(a)(2). In particular, a minor may give consent for diagnosis, prevention, or treatment of pregnancy, and for diagnosis and treatment of venereal disease, without notifying the parent.
Confidentiality of Personal Information: Personal information must be protected and may only be disclosed when authorized by state or federal law and disclosure is required in order to carry out the agency’s duties and responsibilities.
Confidentiality of Adoption Records:
No information may be released from OCS adoption files without a court order, except that non-identifying information listed in (g)(2) below, which should have been given to the adoptive parents at placement, may be released from OCS adoption files without a court order, upon request by the adopted person.
An adopted person who is 18 years or older may request from the State Registrar an uncertified copy of the original birth certificate with any change in the biological parents name or address attached to it.
The State Registrar will also disclose to a biological parent, at that parent's request, the most current name and address of an Adopted Child that appears in the State Registrar's adoption files, if the child is 18 years of age or older and has requested in writing that the information be disclosed if ever requested by the biological parent.
An adopted person 18 years of age or older, or a biological parent, may submit to the State Registrar a notice of change of name or address. The State Registrar will attach the information to the original birth certificate of the adopted person.
The State Registrar will, at the request of an adoptive parent or of an adopted person 18 years of age or older, release the following descriptive information regarding a biological parent named on the original birth certificate of the adopted person, if available from the Registrar's adoption records (this information has been required since 1986):
the age of the biological parent on the day the adopted person was born;
the heritage of the biological parents, to include national origin, ethnic background, and Tribal membership;
the medical history of the biological parent and of blood relatives of the biological parent;
the number of years of school completed by the biological parent by the day the adopted person was born;
a physical description of the biological parent on the day the adopted person was born, including height, weight, and color of hair, eyes and skin;
the existence of other children of the biological parent;
whether the biological parent was alive at the time of adoption;
the religion of the biological parent; and
other information provided by the biological parent for disclosure to the child, which may include such items as photographs, letters, and a statement explaining the reasons for the adoption.
Client records are confidential under Alaska and federal law. Confidentiality is the right of parents and children who have had any involvement with OCS to have information about them safeguarded against public disclosure. Each employee has an ethical and legal responsibility to safeguard information obtained by OCS in the course of providing services to clients.
OCS will follow all applicable state and federal law and regulations and the NASW Code of Ethics while respecting the clients’ right to privacy regarding the child’s need for health and safety, the parents’ rights to seek redress, and the right of schools, foster parents, and the public to have certain information appropriate to their needs