Blending Perspectives and Building Common Ground. Confidentiality Issues

04/01/1999

Confidentiality has long been central to both the substance abuse treatment and child welfare fields.  Both fields recognize a need to guard clients' rights to privacy and shield clients from outside scrutiny while they address the problems which led them to service providers' attention.  Confidentiality is especially important in both these fields because stigma may cause clients to avoid needed services if, as a consequence of receiving assistance, their problems become known to others in the community.  In the substance abuse field, confidentiality is governed by Federal law (42 U.S.C. § 290dd-2) and regulations (42 C.F.R., Part 2) that dictate under what limited circumstances information about the client's treatment may be disclosed with and without the client's consent.

In child welfare, confidentiality is governed by State laws and regulations that conform to the Federal child abuse and neglect and child welfare statutory and regulatory standards.  Title IV-E of the Social Security Act requires that States provide safeguards to restrict the use and/or disclosure of information regarding children receiving title IV-E foster care and adoption assistance (section 471(a)(8)).  Further, in accordance with 45 C.F.R. 1355.30(p)(3), records maintained under titles IV-B and IV-E are subject to the confidentiality provisions in 45 C.F.R. 205.50.  Those provisions restrict the release or use of information to certain persons or agencies that require the information for specified purposes.  The Child Abuse Prevention and Treatment Act (CAPTA) further requires that States preserve the confidentiality of all child abuse and neglect reports and records; however, it allows information to be shared in certain circumstances, for purposes related to child abuse and neglect intervention (section 106(b)(2)(A)(v)).  The only exception to those restrictions is the CAPTA provision which requires that States allow for public disclosure in cases of child abuse or neglect that result in the death or near death of a child (section 106(b)(2)(A)(vi)).  Authorized recipients of information under titles IV-B, IV-E and CAPTA are in turn subject to the same confidentiality standards as the child welfare or child protective services agency that released it.

While there are excellent reasons to guard clients' confidentiality, there are also important reasons for sharing information among programs that are working together to serve clients.  These include the need to assure full assessment and understanding of client needs, progress and case goals among varied service providers; the need to assure that agencies do not work at cross purposes, accidentally making conflicting demands of clients or undermining each other's efforts; and the desire to make an efficient use of resources, avoiding a duplication of efforts.

When child welfare and substance abuse treatment agencies begin to work together, confidentiality issues arise quickly.  One or the other agency will often claim that the information needed by the other "can't" be shared.  Most often, it is the Federal substance abuse confidentiality rules which are said to prevent collaboration.  Experts on both sides point out, however, that existing Federal confidentiality guidelines incorporate mechanisms for appropriate information sharing to take place - but agencies at the local level tend not to incorporate them into their daily activities.  For instance, Qualified Service Organization Agreements (QSOAs) may be established between a substance abuse agency and other organizations that provide services to the program and its clients (HHS/SAMHSA, 1997c).  The regulations specifically mention agencies that provide "services to prevent or treat child abuse and neglect" as being among those with whom QSOAs may be established in order to facilitate services to the client.  Under a QSOA, information about clients may be disclosed between the two agencies without the individual consent of each client (although both agencies remain bound by rules about re-disclosing information outside the agreement).  In addition, if child welfare agencies routinely requested written parental consent for the release of substance abuse treatment records early in the life of a case, many parents might readily consent.  Since the child welfare agency remains bound by prohibitions against redisclosure (again, unless consent is provided), they should be able to receive critical information from the treatment provider about the parent's participation and progress.  However, few child welfare and substance abuse agencies have entered into QSOAs.  Nor does it seem that many child welfare agencies have procedures in place to routinely request consent from clients early in the case.

Agencies that want to cooperate have been able to establish working relationships within the rules to provide child welfare agencies with updates regarding clients' progress in treatment and to ensure that treatment agencies are partners in efforts to achieve child safety.  During our consultation process we heard reports of excellent working relationships from a number of treatment agencies and child welfare agencies, which use each other's expertise to work as a team on behalf of the family.  These relationships take time to build and maintain, however, while staff learn about each other, gain an understanding of each other's role, constraints, and bottom line imperatives, gain confidence and trust in one another, and put in place policies and procedures governing the sharing of information and preventing redisclosure of confidential information.