Disclosure Analysis Guidelines List of Appendices

Disclosure Analysis Guidelines List of Appendices
Disclosure Analysis Guidelines
List of Appendices
Appendix 1 – Analyzing Requests for DHS Child Welfare
Records
Appendix 2 – Statutes, Rules and Federal Regulations
2.a ORS 409.225 Confidentiality of child welfare records, files, papers
and communications
2.b ORS 419B.035 Confidentiality of records; when available to others
2.c ORS 430.399 Confidentiality of drug and alcohol treatment
information
2.d ORS 179.505 Disclosure of written accounts by health care services
provider
2.e ORS 419B.881 Disclosure; scope; when required; exceptions; breach
of duty to disclose
2.f ORS 418.642 Confidentiality of information about person who
maintains foster home; exceptions; rules
2.g ORS 419A.257 Disclosure to district attorney and other state and
county entities
2.h ORS 419B.100 Jurisdiction; bases; Indian children
2.i
ORS 419B.500 Termination of parental rights generally
2.j ORS 411.320 Disclosure and use of public assistance records limited;
contents as privileged communication; exceptions
2.k ORS 419A.255 Maintenance; disclosure; providing transcript;
exceptions to confidentiality
2.l
ORS 419A.102 Access to confidential information by boards;
procedure
2.m ORS 419A.170 CASA Appointment; duties; immunity; access to
information; CASA Fund; rules
2.n ORS 419B.875 Parties to proceedings; rights of limited participation;
status of grandparents; interpreters
2.o ORS 192.445 Nondisclosure on request of home address, home
telephone number and electronic mail address; rules of procedure; duration
of effect of request; liability; when not applicable
2.p ORS 411.117 Requirements when applicants or recipients victims of
domestic violence; identification
2.q OAR 407-014-0020 Uses and Disclosures of Client or Participant
Protected Information
1
Appendix 3 - Common Federal and State Statues Applicable to
Child Welfare Files
Appendix 4 – Request for Access to Records
Appendix 5 – Authorization
5.a 2099 Authorization for Use and Disclosure of Information
5.b 2099i Instructions for Completing the Authorization for Use and
Disclosure of Information
Appendix 6 – Definitions of Disclosure
Appendix 7 – Policies and Memorandum
7.a
7.b
7.c
7.d
7.e
III-F.1.6 Inspection and Copying of Records
DHS-010-010 Public Record Request and Fee
DHS-100-002 Client Privacy Rights
CW-IM-09-019 Release of the CF 307 Assessment to Parents
I-A.3.2 Confidentiality of Client Information
Appendix 8 – Memorandums of Understanding
8.a
8.b
DHS and Court Appointed Special Advocate
DHS and Citizen Review Board
Appendix 9 – Summary and Guidance on Compliance with
42 CFR (federal regulations regarding alcohol and drug
records)
2
DAG – Appendix 1
ANALYZING REQUESTS FOR DHS CHILD
WELFARE RECORDS
A.
What records are requested?
B.
What form is the “request”?
1. Court Order
2. Subpoena – criminal, civil, domestic relations, juvenile court
3. Public Records Request
4. Written or Verbal
C.
Does DHS Child Welfare possess/control the records?
D.
How many records does DHS possess (in inches)? What types of specific documents are
contained in the records.
E.
Who is the requestor? What is the requestor’s relationship to the subject(s) of the
records? Why does the requestor want the records?
F.
Are the records requested for use in a legal proceeding? What is the nature of that
proceeding?
G.
Does the requestor have a right to receive any portion (or all) of the records or consent to
disclosure of the records? Analyze as follows:
1. What Statutes apply? Refer to outline listing applicable statutes.
2. To what portion(s) of the records to the statutes apply?
3. Are there applicable administrative rules? (See OAR 413-010-0000
through OAR 413-010-0075)
4. To what portion(s) of the records do the rules apply?
5. Pursuant to statute or administrative rule is DHS required or permitted to
disclose any (or all) of the records?
If DHS is permitted, but not required, to disclose the records, how does
DHS want to exercise its discretion? If DHS is permitted, but not required, to disclose
the records, how does DHS want to exercise its discretion?
6. Has the requestor signed an authorization to release records?
a. Is the authorization legally sufficient?
b. Is the requestor authorized to sign an authorization to disclose the
records?
c. To what portion of the records does the authorization apply?
d. Is an authorization the proper way to permit disclosure? (ie:
authorization is not the proper way to disclose CPS assessments.)
DAG - APPENDIX 2.a
409.225 Confidentiality of child welfare records, files, papers and communications;
when disclosure required.
(1) In the interest of family privacy and for the protection of children, families and other
recipients of services, the Department of Human Services shall not disclose or use the
contents of any child welfare records, files, papers or communications that contain any
information about an individual child, family or other recipient of services for purposes
other than those directly connected with the administration of child welfare laws or
unless required or authorized by ORS 419A.255 or 419B.035. The records, files, papers
and communications are confidential and are not available for public inspection. General
information, policy statements, statistical reports or similar compilations of data are not
confidential unless such information is identified with an individual child, family or other
recipient of services or protected by other provision of law.
(2) Notwithstanding subsection (1) of this section, unless exempt from disclosure
under ORS chapter 192, the department shall disclose child welfare records:
(a) About a recipient of services, to the recipient if the recipient is 18 years of age or
older or is legally emancipated, unless prohibited by court order;
(b) Regarding a specific individual if the individual gives written authorization to
release confidential information;
(c) Concerning a child receiving services on a voluntary basis, to the child’s parent or
legal guardian;
(d) To the juvenile court in proceedings regarding the child; and
(e) Concerning a child who is or has been in the custody of the department, to the
child’s parent or legal guardian except:
(A) When the child objects; or
(B) If disclosure would be contrary to the best interests of any child or could be
harmful to the person caring for the child.
(3) Notwithstanding subsection (1) of this section, unless exempt from disclosure
under ORS chapter 192, the department shall disclose child welfare records, if in the best
interests of the child, to:
(a) Treatment providers, foster parents, adoptive parents, school officials or other
persons providing services to the child or family to the extent that such disclosure is
necessary to provide services to the child or family; or
(b) A person designated as a member of a sensitive review committee convened by
the Director of Human Services when the purpose of the committee is to determine
whether the department acted appropriately and to make recommendations to the
department regarding policy and practice.
(4) Any record disclosed under subsection (1), (2) or (3) of this section shall be kept
confidential by the person or entity to whom the record is disclosed and shall be used
only for the purpose for which disclosure was made.
(5) Unless exempt from disclosure under ORS chapter 192, when an adult who is the
subject of information made confidential by subsection (1) of this section publicly reveals
or causes to be revealed any significant part of the confidential matter or information, the
protections afforded by subsection (1) of this section are presumed voluntarily waived
DAG - APPENDIX 2.a
and confidential information about the person making or causing the public disclosure,
not already disclosed but related to the information made public, may be disclosed if
disclosure is in the best interests of the child or necessary to the administration of the
child welfare laws.
(6) Notwithstanding subsection (1) of this section, unless exempt from disclosure
under ORS chapter 192, the department shall disclose information related to the
department’s activities and responsibilities in a case where child abuse or neglect has
resulted in a child fatality or near fatality or where an adult has been charged with a crime
related to child abuse or neglect.
(7) Notwithstanding subsections (2), (3), (5) and (6) of this section, ORS 192.501 (3)
shall apply to investigatory information compiled for criminal law purposes that may be
in the possession of the department.
(8) As used in this section, “adult” means a person who is 18 years of age or older.
[1997 c.415 §1; 2001 c.900 §69]
DAG - APPENDIX 2.b
(2009 Edition)
419B.035 Confidentiality of records; when available to others. (1) Notwithstanding
the provisions of ORS 192.001 to 192.170, 192.210 to 192.505 and 192.610 to 192.990
relating to confidentiality and accessibility for public inspection of public records and
public documents, reports and records compiled under the provisions of ORS 419B.010
to 419B.050 are confidential and may not be disclosed except as provided in this section.
The Department of Human Services shall make the records available to: (a) Any law enforcement agency or a child abuse registry in any other state for the
purpose of subsequent investigation of child abuse; (b) Any physician, at the request of the physician, regarding any child brought to the
physician or coming before the physician for examination, care or treatment; (c) Attorneys of record for the child or child’s parent or guardian in any juvenile court
proceeding; (d) Citizen review boards established by the Judicial Department for the purpose of
periodically reviewing the status of children, youths and youth offenders under the
jurisdiction of the juvenile court under ORS 419B.100 and 419C.005. Citizen review
boards may make such records available to participants in case reviews; (e) A court appointed special advocate in any juvenile court proceeding in which it is
alleged that a child has been subjected to child abuse or neglect; (f) The Child Care Division for certifying, registering or otherwise regulating child
care facilities; (g) The Office of Children’s Advocate; (h) The Teacher Standards and Practices Commission for investigations conducted
under ORS 342.176 involving any child or any student in grade 12 or below; (i) Any person, upon request to the Department of Human Services, if the reports or
records requested regard an incident in which a child, as the result of abuse, died or
suffered serious physical injury as defined in ORS 161.015. Reports or records disclosed
under this paragraph must be disclosed in accordance with ORS 192.410 to 192.505; and (j) The Child Care Division of the Employment Department for purposes of ORS
657A.030 (8)(g). (2)(a) When disclosing reports and records pursuant to subsection (1)(i) of this
section, the Department of Human Services may exempt from disclosure the names,
addresses and other identifying information about other children, witnesses, victims or
other persons named in the report or record if the department determines, in written
findings, that the safety or well-being of a person named in the report or record may be
jeopardized by disclosure of the names, addresses or other identifying information, and if
that concern outweighs the public’s interest in the disclosure of that information. (b) If the Department of Human Services does not have a report or record of abuse
regarding a child who, as the result of abuse, died or suffered serious physical injury as
defined in ORS 161.015, the department may disclose that information. (3) The Department of Human Services may make reports and records compiled
under the provisions of ORS 419B.010 to 419B.050 available to any person,
administrative hearings officer, court, agency, organization or other entity when the
department determines that such disclosure is necessary to administer its child welfare
DAG - APPENDIX 2.b
services and is in the best interests of the affected child, or that such disclosure is
necessary to investigate, prevent or treat child abuse and neglect, to protect children from
abuse and neglect or for research when the Director of Human Services gives prior
written approval. The Department of Human Services shall adopt rules setting forth the
procedures by which it will make the disclosures authorized under this subsection or
subsection (1) or (2) of this section. The name, address and other identifying information
about the person who made the report may not be disclosed pursuant to this subsection
and subsection (1) of this section. (4) A law enforcement agency may make reports and records compiled under the
provisions of ORS 419B.010 to 419B.050 available to other law enforcement agencies,
district attorneys, city attorneys with criminal prosecutorial functions and the Attorney
General when the law enforcement agency determines that disclosure is necessary for the
investigation or enforcement of laws relating to child abuse and neglect. (5) A law enforcement agency, upon completing an investigation and closing the file
in a specific case relating to child abuse or neglect, shall make reports and records in the
case available upon request to any law enforcement agency or community corrections
agency in this state, to the Department of Corrections or to the State Board of Parole and
Post-Prison Supervision for the purpose of managing and supervising offenders in
custody or on probation, parole, post-prison supervision or other form of conditional or
supervised release. A law enforcement agency may make reports and records compiled
under the provisions of ORS 419B.010 to 419B.050 available to law enforcement,
community corrections, corrections or parole agencies in an open case when the law
enforcement agency determines that the disclosure will not interfere with an ongoing
investigation in the case. The name, address and other identifying information about the
person who made the report may not be disclosed under this subsection or subsection
(6)(b) of this section. (6)(a) Any record made available to a law enforcement agency or community
corrections agency in this state, to the Department of Corrections or the State Board of
Parole and Post-Prison Supervision or to a physician in this state, as authorized by
subsections (1) to (5) of this section, shall be kept confidential by the agency, department,
board or physician. Any record or report disclosed by the Department of Human Services
to other persons or entities pursuant to subsections (1) and (3) of this section shall be kept
confidential. (b) Notwithstanding paragraph (a) of this subsection: (A) A law enforcement agency, a community corrections agency, the Department of
Corrections and the State Board of Parole and Post-Prison Supervision may disclose
records made available to them under subsection (5) of this section to each other, to law
enforcement, community corrections, corrections and parole agencies of other states and
to authorized treatment providers for the purpose of managing and supervising offenders
in custody or on probation, parole, post-prison supervision or other form of conditional or
supervised release. (B) A person may disclose records made available to the person under subsection
(1)(i) of this section if the records are disclosed for the purpose of advancing the public
interest. (7) An officer or employee of the Department of Human Services or of a law
enforcement agency or any person or entity to whom disclosure is made pursuant to
DAG - APPENDIX 2.b
subsections (1) to (6) of this section may not release any information not authorized by
subsections (1) to (6) of this section. (8) As used in this section, “law enforcement agency” has the meaning given that
term in ORS 181.010. (9) A person who violates subsection (6)(a) or (7) of this section commits a Class A
violation. [1993 c.546 §§20,20a; 1995 c.278 §51; 1997 c.328 §8; 1999 c.1051 §181; 2003
c.14 §224; 2003 c.412 §1; 2003 c.591 §8; 2005 c.317 §1; 2005 c.659 §2; 2009 c.348 §3;
2009 c.393 §1] DAG - APPENDIX 2.c
430.399 When person must be taken to treatment facility; admission or referral;
when jail custody may be used; confidentiality of records. (1) Any person who is
intoxicated or under the influence of controlled substances in a public place may be taken
or sent home or to a treatment facility by the police. However, if the person is
incapacitated, the health of the person appears to be in immediate danger, or the police
have reasonable cause to believe the person is dangerous to self or to any other person,
the person shall be taken by the police to an appropriate treatment facility. A person shall
be deemed incapacitated when in the opinion of the police officer or director of the
treatment facility the person is unable to make a rational decision as to acceptance of
assistance.
(2) The director of the treatment facility shall determine whether a person shall be
admitted as a patient, or referred to another treatment facility or denied referral or
admission. If the person is incapacitated or the health of the person appears to be in
immediate danger, or if the director has reasonable cause to believe the person is
dangerous to self or to any other person, the person must be admitted. The person shall be
discharged within 48 hours unless the person has applied for voluntary admission to the
treatment facility.
(3) In the absence of any appropriate treatment facility, an intoxicated person or a
person under the influence of controlled substances who would otherwise be taken by the
police to a treatment facility may be taken to the city or county jail where the person may
be held until no longer intoxicated, under the influence of controlled substances or
incapacitated.
(4) An intoxicated person or person under the influence of controlled substances,
when taken into custody by the police for a criminal offense, shall immediately be taken
to the nearest appropriate treatment facility when the condition of the person requires
emergency medical treatment.
(5) The records of a patient at a treatment facility shall not be revealed to any person
other than the director and staff of the treatment facility without the consent of the
patient. A patient’s request that no disclosure be made of admission to a treatment facility
shall be honored unless the patient is incapacitated or disclosure of admission is required
by ORS 430.397.
(6) As used in this section, “treatment facility” has the meaning given “other
treatment facility” in ORS 430.306. [Formerly 426.460]
DAG - APPENDIX 2.d
(2009 Edition)
179.505 Disclosure of written accounts by health care services provider. (1) As used
in this section: (a) “Disclosure” means the release of, transfer of, provision of access to or divulgence
in any other manner of information outside the health care services provider holding the
information. (b) “Health care services provider” means: (A) Medical personnel or other staff employed by or under contract with a public
provider to provide health care or maintain written accounts of health care provided to
individuals; or (B) Units, programs or services designated, operated or maintained by a public
provider to provide health care or maintain written accounts of health care provided to
individuals. (c) “Individually identifiable health information” means any health information that
is: (A) Created or received by a health care services provider; and (B) Identifiable to an individual, including demographic information that identifies
the individual, or for which there is a reasonable basis to believe the information can be
used to identify an individual, and that relates to: (i) The past, present or future physical or mental health or condition of an individual; (ii) The provision of health care to an individual; or (iii) The past, present or future payment for the provision of health care to an
individual. (d) “Personal representative” includes but is not limited to: (A) A person appointed as a guardian under ORS 125.305, 419B.370, 419C.481 or
419C.555 with authority to make medical and health care decisions; (B) A person appointed as a health care representative under ORS 127.505 to 127.660
or a representative under ORS 127.700 to 127.737 to make health care decisions or
mental health treatment decisions; and (C) A person appointed as a personal representative under ORS chapter 113. (e) “Psychotherapy notes” means notes recorded in any medium: (A) By a mental health professional, in the performance of the official duties of the
mental health professional; (B) Documenting or analyzing the contents of conversation during a counseling
session; and (C) That are maintained separately from the rest of the individual’s record. (f) “Psychotherapy notes” does not mean notes documenting: (A) Medication prescription and monitoring; (B) Counseling session start and stop times; (C) Modalities and frequencies of treatment furnished; (D) Results of clinical tests; or (E) Any summary of the following items: (i) Diagnosis; (ii) Functional status; (iii) Treatment plan; DAG - APPENDIX 2.d
(iv) Symptoms; (v) Prognosis; or (vi) Progress to date. (g) “Public provider” means: (A) The Blue Mountain Recovery Center, the Eastern Oregon Training Center and the
Oregon State Hospital campuses; (B) Department of Corrections institutions as defined in ORS 421.005; (C) A contractor of the Department of Corrections, the Department of Human
Services or the Oregon Health Authority that provides health care to individuals residing
in a state institution operated by the agencies; (D) A community mental health program or community developmental disabilities
program as described in ORS 430.610 to 430.695 and the public and private entities with
which it contracts to provide mental health or developmental disabilities programs or
services; (E) A program or service provided under ORS 431.250, 431.375 to 431.385 or
431.416; (F) A program or service established or maintained under ORS 430.630; (G) A program or facility providing an organized full-day or part-day program of
treatment that is licensed, approved, established, maintained or operated by or contracted
with the Oregon Health Authority for alcoholism, drug addiction or mental or emotional
disturbance; (H) A program or service providing treatment by appointment that is licensed,
approved, established, maintained or operated by or contracted with the authority for
alcoholism, drug addiction or mental or emotional disturbance; or (I) The impaired health professional program established under ORS 676.190. (h) “Written account” means records containing only individually identifiable health
information. (2) Except as provided in subsections (3), (4), (6), (7), (8), (9), (11), (12), (14), (15),
(16) and (17) of this section or unless otherwise permitted or required by state or federal
law or by order of the court, written accounts of the individuals served by any health care
services provider maintained in or by the health care services provider by the officers or
employees thereof who are authorized to maintain written accounts within the official
scope of their duties are not subject to access and may not be disclosed. This subsection
applies to written accounts maintained in or by facilities of the Department of Corrections
only to the extent that the written accounts concern the medical, dental or psychiatric
treatment as patients of those under the jurisdiction of the Department of Corrections. (3) If the individual or a personal representative of the individual provides an
authorization, the content of any written account referred to in subsection (2) of this
section must be disclosed accordingly, if the authorization is in writing and is signed and
dated by the individual or the personal representative of the individual and sets forth with
specificity the following: (a) Name of the health care services provider authorized to make the disclosure,
except when the authorization is provided by recipients of or applicants for public
assistance to a governmental entity for purposes of determining eligibility for benefits or
investigating for fraud; DAG - APPENDIX 2.d
(b) Name or title of the persons or organizations to which the information is to be
disclosed or that information may be disclosed to the public; (c) Name of the individual; (d) Extent or nature of the information to be disclosed; and (e) Statement that the authorization is subject to revocation at any time except to the
extent that action has been taken in reliance thereon, and a specification of the date, event
or condition upon which it expires without express revocation. However, a revocation of
an authorization is not valid with respect to inspection or records necessary to validate
expenditures by or on behalf of governmental entities. (4) The content of any written account referred to in subsection (2) of this section
may be disclosed without an authorization: (a) To any person to the extent necessary to meet a medical emergency. (b) At the discretion of the responsible officer of the health care services provider,
which in the case of any Oregon Health Authority facility or community mental health
program is the Director of the Oregon Health Authority, to persons engaged in scientific
research, program evaluation, peer review and fiscal audits. However, individual
identities may not be disclosed to such persons, except when the disclosure is essential to
the research, evaluation, review or audit and is consistent with state and federal law. (c) To governmental agencies when necessary to secure compensation for services
rendered in the treatment of the individual. (5) When an individual’s identity is disclosed under subsection (4) of this section, a
health care services provider shall prepare, and include in the permanent records of the
health care services provider, a written statement indicating the reasons for the disclosure,
the written accounts disclosed and the recipients of the disclosure. (6) The content of any written account referred to in subsection (2) of this section and
held by a health care services provider currently engaged in the treatment of an individual
may be disclosed to officers or employees of that provider, its agents or cooperating
health care services providers who are currently acting within the official scope of their
duties to evaluate treatment programs, to diagnose or treat or to assist in diagnosing or
treating an individual when the written account is to be used in the course of diagnosing
or treating the individual. Nothing in this subsection prevents the transfer of written
accounts referred to in subsection (2) of this section among health care services
providers, the Department of Human Services, the Department of Corrections, the
Oregon Health Authority or a local correctional facility when the transfer is necessary or
beneficial to the treatment of an individual. (7) When an action, suit, claim, arbitration or proceeding is brought under ORS
34.105 to 34.240 or 34.310 to 34.730 and involves a claim of constitutionally inadequate
medical care, diagnosis or treatment, or is brought under ORS 30.260 to 30.300 and
involves the Department of Corrections or an institution operated by the department,
nothing in this section prohibits the disclosure of any written account referred to in
subsection (2) of this section to the Department of Justice, Oregon Department of
Administrative Services, or their agents, upon request, or the subsequent disclosure to a
court, administrative hearings officer, arbitrator or other administrative decision maker. (8)(a) When an action, suit, claim, arbitration or proceeding involves the Department
of Human Services, the Oregon Health Authority or an institution operated by the
department or authority, nothing in this section prohibits the disclosure of any written
DAG - APPENDIX 2.d
account referred to in subsection (2) of this section to the Department of Justice, Oregon
Department of Administrative Services, or their agents. (b) Disclosure of information in an action, suit, claim, nonlabor arbitration or
proceeding is limited by the relevancy restrictions of ORS 40.010 to 40.585, 183.710 to
183.725, 183.745 and 183.750 and ORS chapter 183. Only written accounts of a plaintiff,
claimant or petitioner shall be disclosed under this paragraph. (c) Disclosure of information as part of a labor arbitration or proceeding to support a
personnel action taken against staff is limited to written accounts directly relating to
alleged action or inaction by staff for which the personnel action was imposed. (9)(a) The copy of any written account referred to in subsection (2) of this section,
upon written request of the individual or a personal representative of the individual, shall
be disclosed to the individual or the personal representative of the individual within a
reasonable time not to exceed five working days. The individual or the personal
representative of the individual shall have the right to timely access to any written
accounts. (b) If the disclosure of psychiatric or psychological information contained in the
written account would constitute an immediate and grave detriment to the treatment of
the individual, disclosure may be denied, if medically contraindicated by the treating
physician or a licensed health care professional in the written account of the individual. (c) The Department of Corrections may withhold psychiatric or psychological
information if: (A) The information relates to an individual other than the individual seeking it. (B) Disclosure of the information would constitute a danger to another individual. (C) Disclosure of the information would compromise the privacy of a confidential
source. (d) However, a written statement of the denial under paragraph (c) of this subsection
and the reasons therefor must be entered in the written account. (10) A health care services provider may require a person requesting disclosure of the
contents of a written account under this section to reimburse the provider for the
reasonable costs incurred in searching files, abstracting if requested and copying if
requested. However, an individual or a personal representative of the individual may not
be denied access to written accounts concerning the individual because of inability to
pay. (11) A written account referred to in subsection (2) of this section may not be used to
initiate or substantiate any criminal, civil, administrative, legislative or other proceedings
conducted by federal, state or local authorities against the individual or to conduct any
investigations of the individual. If the individual, as a party to an action, suit or other
judicial proceeding, voluntarily produces evidence regarding an issue to which a written
account referred to in subsection (2) of this section would be relevant, the contents of that
written account may be disclosed for use in the proceeding. (12) Information obtained in the course of diagnosis, evaluation or treatment of an
individual that, in the professional judgment of the health care services provider,
indicates a clear and immediate danger to others or to society may be reported to the
appropriate authority. A decision not to disclose information under this subsection does
not subject the provider to any civil liability. Nothing in this subsection may be construed
DAG - APPENDIX 2.d
to alter the provisions of ORS 146.750, 146.760, 419B.010, 419B.015, 419B.020,
419B.025, 419B.030, 419B.035, 419B.040 and 419B.045. (13) The prohibitions of this section apply to written accounts concerning any
individual who has been treated by any health care services provider irrespective of
whether or when the individual ceases to receive treatment. (14) Persons other than the individual or the personal representative of the individual
who are granted access under this section to the contents of a written account referred to
in subsection (2) of this section may not disclose the contents of the written account to
any other person except in accordance with the provisions of this section. (15) Nothing in this section prevents the Department of Human Services or the
Oregon Health Authority from disclosing the contents of written accounts in its
possession to individuals or agencies with whom children in its custody are placed. (16) The system described in ORS 192.517 (1) shall have access to records, as
defined in ORS 192.515, as provided in ORS 192.517. (17)(a) Except as provided in paragraph (b) of this subsection, a health care services
provider must obtain an authorization from an individual or a personal representative of
the individual to disclose psychotherapy notes. (b) A health care services provider may use or disclose psychotherapy notes without
obtaining an authorization from the individual or a personal representative of the
individual to carry out the following treatment, payment and health care operations: (A) Use by the originator of the psychotherapy notes for treatment; (B) Disclosure by the health care services provider for its own training program in
which students, trainees or practitioners in mental health learn under supervision to
practice or improve their skills in group, joint, family or individual counseling; or (C) Disclosure by the health care services provider to defend itself in a legal action or
other proceeding brought by the individual or a personal representative of the individual. (c) An authorization for the disclosure of psychotherapy notes may not be combined
with an authorization for a disclosure of any other individually identifiable health
information, but may be combined with another authorization for a disclosure of
psychotherapy notes. [1973 c.736 §2; 1977 c.812 §3; 1981 c.326 §2; 1985 c.219 §1; 1987
c.320 §134; 1987 c.322 §1; 1989 c.81 §1; 1991 c.175 §1; 1991 c.807 §1; 1993 c.262 §3;
1993 c.546 §101; 2001 c.900 §44; 2003 c.88 §2; 2005 c.498 §5; 2009 c.595 §145; 2009
c.697 §12] DAG - APPENDIX 2.e
419B.881 Disclosure; scope; when required; exceptions; breach of duty to
disclose.(1) In all proceedings brought under ORS 419B.100 or 419B.500, each party,
including the state, shall disclose to each other party and to a guardian ad litem appointed
under ORS 419B.231 the following information and material within the possession or
under the control of the party:
(a) The names and addresses of all persons the party intends to call as witnesses at
any stage of the hearing, together with any relevant written or recorded statements or
memoranda of any oral statements of such persons;
(b) Any written or recorded statements or memoranda of any oral statements made
either by the parent or by the child to any other party or agent for any other party;
(c) Any reports or statements of experts who will be called as witnesses, including the
results of any physical or mental examinations and of comparisons or experiments that
the party intends to offer in evidence at the hearing; and
(d) Any books, papers, documents or photographs that the party intends to offer in
evidence at the hearing, or that were obtained from or belong to any other party.
(2)(a) Disclosure shall be made as soon as practicable following the filing of a
petition and no later than:
(A) Thirty days after a petition alleging jurisdiction has been filed.
(B) Three days before any review hearing, except for information received or
discovered less than three days prior to the hearing.
(C) Ten days before a termination trial, except for information received or discovered
less than 10 days prior to the trial.
(b) The court may supervise the exercise of discovery to the extent necessary to
insure that it proceeds properly and expeditiously.
(3) The obligation to disclose is an ongoing obligation and if a party finds, either
before or during the hearing, additional material or information that is subject to
disclosure, the information or material shall be promptly disclosed.
(4) The following material and information need not be disclosed:
(a) Attorney work product; and
(b) Transcripts, recordings or memoranda of testimony of witnesses before the grand
jury, except transcripts or recordings of testimony of a party to the current juvenile court
proceeding.
(5) Upon a showing of good cause, the court may at any time order that specified
disclosure be denied, restricted or deferred or make such other order as is appropriate.
(6) Upon request of a party, the court may permit a showing of good cause for denial
or regulation of disclosure by the parties or the contents of subpoenaed materials, or
portion of the showing, to be made in camera. A record shall be made of the proceeding.
(7) If the court enters an order following an in camera showing, the entire record of
the showing shall be sealed and preserved in the records of the court, to be made
available to the appellate court in the event of an appeal. The trial court may, after
disposition, unseal the record.
(8) When some parts of certain material are subject to disclosure and other parts are
not, as much of the material as is subject to disclosure shall be disclosed.
DAP - APPENDIX 2.e
(9) Upon being notified of any breach of a duty to disclose material or information, the
court may:
(a) Order the violating party to permit inspection of the material;
(b) Grant a continuance;
(c) Refuse to permit the witness to testify;
(d) Refuse to receive in evidence the material that was not disclosed; or
(e) Enter such other order as the court considers appropriate. [Formerly 419B.300;
2005 c.450 §9]
DAG – APPENDIX 2.f
418.642 Confidentiality of information about person who maintains foster home;
exceptions; rules. (1) Notwithstanding ORS 192.410 to 192.505, the name, address and
other identifying information about a person who maintains a foster home are
confidential and not accessible for public inspection.
(2) Notwithstanding subsection (1) of this section, the Department of Human Services
may adopt rules that allow the department to disclose information about a person who
maintains a foster home if the department deems:
(a) It necessary or advisable to protect the best interests of a child; or
(b) It necessary for the administration of the child welfare laws. [1999 c.465 §2]
DAP – APPENDIX 2.g
419A.257 Disclosure to district attorney and other state and county entities. (1) The
district attorney or assistant attorney general representing the state in a juvenile court
proceeding, the juvenile department, the Department of Human Services and the Oregon
Youth Authority may inspect and obtain from the court copies of the records, reports and
other materials described in ORS 419A.255 (1) and (2) to the same extent that attorneys
for the other parties and the other parties are authorized to inspect and obtain copies of
the records, reports and other materials. An agency or person that inspects or obtains
records, reports or materials under this subsection is subject to ORS 419A.255 (3). (2) Nothing in ORS 419A.255 prohibits the district attorney or assistant attorney
general representing the state in a juvenile court proceeding, the juvenile department, the
Department of Human Services, the Oregon Youth Authority or the other parties in the
proceeding or their attorneys from disclosing to each other records, reports and other
materials described in ORS 419A.255 (1) and (2) if the disclosure is reasonably necessary
to perform official duties related to the involvement of the child, ward, youth or youth
offender with the juvenile court or juvenile department. An agency or person to whom
records, reports or materials are disclosed under this subsection is subject to ORS
419A.255 (3). (3) An agency or person that inspects or obtains records, reports or materials under
subsection (1) of this section or to whom records, reports or materials are disclosed under
subsection (2) of this section may not use or disclose the records, reports or materials
except: (a) As provided in subsections (1) and (2) of this section; (b) In the juvenile court proceeding for which the records, reports or materials were
sought or disclosed; (c) With the consent of the court as provided in ORS 419A.255 (2) or (3); or (d) As provided in ORS 419A.253. [2005 c.451 §4] DAG – APPENDIX 2.h
419B.100 Jurisdiction; bases; Indian children. (1) Except as otherwise provided in
subsection (6) of this section and ORS 107.726, the juvenile court has exclusive original
jurisdiction in any case involving a person who is under 18 years of age and: (a) Who is beyond the control of the person’s parents, guardian or other person
having custody of the person; (b) Whose behavior is such as to endanger the welfare of the person or of others; (c) Whose condition or circumstances are such as to endanger the welfare of the
person or of others; (d) Who is dependent for care and support on a public or private child-caring agency
that needs the services of the court in planning for the best interest of the person; (e) Whose parents or any other person or persons having custody of the person have: (A) Abandoned the person; (B) Failed to provide the person with the care or education required by law; (C) Subjected the person to cruelty, depravity or unexplained physical injury; or (D) Failed to provide the person with the care, guidance and protection necessary for
the physical, mental or emotional well-being of the person; (f) Who has run away from the home of the person; (g) Who has filed a petition for emancipation pursuant to ORS 419B.550 to
419B.558; or (h) Who is subject to an order entered under ORS 419C.411 (7)(a). (2) The court shall have jurisdiction under subsection (1) of this section even though
the child is receiving adequate care from the person having physical custody of the child. (3) The practice of a parent who chooses for the parent or the child of the parent
treatment by prayer or spiritual means alone may not be construed as a failure to provide
physical care within the meaning of this chapter, but does not prevent a court of
competent jurisdiction from exercising that jurisdiction under subsection (1)(c) of this
section. (4) The provisions of subsection (1) of this section do not prevent a court of
competent jurisdiction from entertaining a civil action or suit involving a child. (5) The court does not have further jurisdiction as provided in subsection (1) of this
section after a minor has been emancipated pursuant to ORS 419B.550 to 419B.558. (6)(a) An Indian tribe has exclusive jurisdiction over any child custody proceeding
involving an Indian child who resides or is domiciled within the reservation of the tribe,
except where the jurisdiction is otherwise vested in the state by existing federal law. (b) Upon the petition of either parent, the Indian custodian or the Indian child’s tribe,
the juvenile court, absent good cause to the contrary and absent objection by either parent,
shall transfer a proceeding for the foster care placement of, or termination of parental
rights to, an Indian child not domiciled or residing within the reservation of the Indian
child’s tribe, to the jurisdiction of the tribe. (c) The juvenile court shall give full faith and credit to the public acts, records and
judicial proceedings of an Indian tribe applicable to an Indian child custody proceeding to
the same extent that the juvenile court gives full faith and credit to the public acts,
records and judicial proceedings of any other entity. [1993 c.33 §53; 1993 c.546 §10;
1993 c.643 §5; 2005 c.843 §31]
DAG – APPENDIX 2.i
419B.500 Termination of parental rights generally. The parental rights of
the parents of a ward may be terminated as provided in this section and ORS
419B.502 to 419B.524, only upon a petition filed by the state or the ward for
the purpose of freeing the ward for adoption if the court finds it is in the best
interest of the ward. If an Indian child is involved, the termination of
parental rights must be in compliance with the Indian Child Welfare Act.
The rights of one parent may be terminated without affecting the rights of
the other parent. [1993 c.33 §138; 1993 c.546 §56; 1997 c.873 §6; 2003
c.396 §83]
DAG – APPENDIX 2.j
411.320 Disclosure and use of public assistance records limited; contents as
privileged communication; exceptions. (1) For the protection of applicants for and
recipients of public assistance, except as otherwise provided in this section, the
Department of Human Services shall not disclose or use the contents of any public
assistance records, files, papers or communications for purposes other than those directly
connected with the administration of the public assistance laws of Oregon or as necessary
to assist public assistance applicants and recipients in accessing and receiving other
governmental or private nonprofit services, and these records, files, papers and
communications are considered confidential subject to the rules and regulations of the
Department of Human Services. In any judicial or administrative proceeding, except
proceedings directly connected with the administration of public assistance or child
support enforcement laws, their contents are considered privileged communications. (2) Nothing in this section prohibits the disclosure or use of contents of records, files,
papers or communications for purposes directly connected with the establishment and
enforcement of support obligations pursuant to the Title IV-D program. (3) Nothing in this section prohibits the disclosure of the address, Social Security
number and photograph of any applicant or recipient to a law enforcement official at the
request of such official. To receive information pursuant to this section, the officer must
furnish the agency the name of the applicant or recipient and advise that the applicant or
recipient: (a) Is fleeing to avoid prosecution, custody or confinement after conviction for a
felony; (b) Is violating a condition of probation or parole; or (c) Has information that is necessary for the officer to conduct the official duties of
the officer and the location or apprehension of the applicant or recipient is within such
official duties. [1953 c.500 §5; 1971 c.779 §17; 1995 c.609 §8; 1997 c.581 §7; 2001
c.900 §88a] DAG – APPENDIX 2.k
419A.255 Maintenance; disclosure; providing transcript; exceptions to
confidentiality. (1) The clerk of the court shall keep a record of each case, including
therein the summons and other process, the petition and all other papers in the nature of
pleadings, motions, orders of the court and other papers filed with the court, but
excluding reports and other material relating to the child, ward, youth or youth offender’s
history and prognosis. The record of the case shall be withheld from public inspection but
is open to inspection by the child, ward, youth, youth offender, parent, guardian, court
appointed special advocate, surrogate or a person allowed to intervene in a proceeding
involving the child, ward, youth or youth offender, and their attorneys. The attorneys are
entitled to copies of the record of the case. (2) Reports and other material relating to the child, ward, youth or youth offender’s
history and prognosis are privileged and, except at the request of the child, ward, youth or
youth offender, may not be disclosed directly or indirectly to anyone other than the judge
of the juvenile court, those acting under the judge’s direction, service providers in the
case and the attorneys of record for the child, ward, youth or youth offender or the child,
ward, youth or youth offender’s parent, guardian, court appointed special advocate,
surrogate or person allowed to intervene in a proceeding involving the child, ward, youth
or youth offender. Reports and other material relating to a youth offender’s history and
prognosis in cases under ORS 419C.005 may be disclosed to the superintendent of the
school district in which the youth offender resides or the superintendent’s designee. The
service providers in the case, school superintendents, superintendents’ designees and
attorneys are entitled to examine and obtain copies of any reports or other material
relating to the child, ward, youth or youth offender’s history and prognosis. Any service
provider in the case, school superintendent, superintendent’s designee or attorney who
examines or obtains copies of such reports or materials is responsible for preserving their
confidentiality. A service provider, school superintendent or superintendent’s designee
who obtains copies of such reports or materials shall return the copies to the court upon
the conclusion of the service provider’s, superintendent’s or superintendent’s designee’s
involvement in the case. (3) Except as otherwise provided in subsection (7) of this section, no information
appearing in the record of the case or in reports or other material relating to the child,
ward, youth or youth offender’s history or prognosis may be disclosed to any person not
described in subsection (2) of this section without the consent of the court, except for
purposes of evaluating the child, ward, youth or youth offender’s eligibility for special
education as provided in ORS chapter 343, and no such information may be used in
evidence in any proceeding to establish criminal or civil liability against the child, ward,
youth or youth offender, whether such proceeding occurs after the child, ward, youth or
youth offender has reached 18 years of age or otherwise, except for the following
purposes: (a) In connection with a presentence investigation after guilt has been admitted or
established in a criminal court. (b) In connection with a proceeding in another juvenile court concerning the child,
ward, youth or youth offender or an appeal from the juvenile court. (4) If the court finds that the child, ward, youth, youth offender or parent is without
financial means to purchase all or a necessary part of the transcript of the evidence or
DAG – APPENDIX 2.k
proceedings, the court shall order upon motion the transcript or part thereof to be
furnished. The transcript or part thereof furnished under this subsection shall be paid for
in the same manner as furnished transcripts are paid for in criminal cases. (5) Notwithstanding any other provision of law, the following are not confidential and
not exempt from disclosure: (a) The name and date of birth of the youth or youth offender; (b) The basis for the juvenile court’s jurisdiction over the youth or youth offender; (c) The date, time and place of any juvenile court proceeding in which the youth or
youth offender is involved; (d) The act alleged in the petition that if committed by an adult would constitute a
crime if jurisdiction is based on ORS 419C.005; (e) That portion of the juvenile court order providing for the legal disposition of the
youth or youth offender when jurisdiction is based on ORS 419C.005; (f) The names and addresses of the youth or youth offender’s parents or guardians;
and (g) The register described in ORS 7.020 when jurisdiction is based on ORS 419C.005. (6) Notwithstanding any other provision of law, when a youth has been taken into
custody under ORS 419C.080, the following information shall be disclosed unless, and
only for so long as, there is a clear need to delay disclosure in the course of a specific
investigation, including the need to protect the complaining party or the victim: (a) The youth’s name and age and whether the youth is employed or in school; (b) The youth offense for which the youth was taken into custody; (c) The name and age of the adult complaining party and the adult victim, unless the
disclosure of such information is otherwise prohibited or restricted; (d) The identity of the investigating and arresting agency; and (e) The time and place that the youth was taken into custody and whether there was
resistance, pursuit or a weapon used in taking the youth into custody. (7)(a) Information contained in reports and other materials relating to a child, ward,
youth or youth offender’s history and prognosis that, in the professional judgment of the
juvenile counselor, caseworker, school superintendent or superintendent’s designee,
teacher or detention worker to whom the information for the reports or other materials
has been provided, indicates a clear and immediate danger to another person or to society
shall be disclosed to the appropriate authority and the person or entity who is in danger
from the child, ward, youth or youth offender. (b) An agency or a person who discloses information under paragraph (a) of this
subsection has immunity from any liability, civil or criminal, that might otherwise be
incurred or imposed for making the disclosure. (c) Nothing in this subsection affects the provisions of ORS 146.750, 146.760,
419B.035, 419B.040 and 419B.045. The disclosure of information under this section does
not make the information admissible in any court or administrative proceeding if it is not
otherwise admissible. (8) A county juvenile department is the agency responsible for disclosing youth and
youth offender records if the records are subject to disclosure. (9) A petition filed under ORS 419B.851 alleging that a child who is a foreign
national is within the jurisdiction of the court, or a motion requesting an implementation
DAG – APPENDIX 2.k
plan other than return of a ward to the ward’s parent, is subject to disclosure to the
consulate for the child or ward’s country as provided under ORS 419B.851 (3). (10) Nothing in this section prohibits a guardian appointed under ORS 419B.365 or
419B.366 from disclosing or providing copies of letters of guardianship when so required
to fulfill the duties of a guardian. (11) The court shall cooperate in the sharing of information with a court in another
state to facilitate an interstate placement of a child or ward. [1993 c.33 §49; 1993 c.234
§3; 1993 c.546 §8; 1995 c.422 §68; 1997 c.724 §§3,4; 1999 c.59 §118; 1999 c.620 §8;
2001 c.904 §11; 2001 c.910 §1; 2003 c.143 §4; 2003 c.229 §9; 2003 c.396 §34a; 2007
c.611 §4; 2008 c.50 §9] DAG – Appendix 2.l
419A.102 Access to confidential information by boards; procedure. (1)
Notwithstanding the provisions of ORS 40.225 to 40.275, 412.074,
419B.035, 419B.045, 419B.440, 419B.443, 419B.446, 419B.449, 419B.452
and 419B.460, each local citizen review board shall have access to: (a) Any records of the court which are pertinent to the case; and (b) Any records of the Department of Human Services that would be
admissible in a permanency hearing conducted under ORS 419B.470,
419B.473 and 419B.476, including school records and reports of private
service providers contained in the records of the department or other agency. (2) All requested records not already before the local citizen review
board shall be submitted by the department within five working days after
receipt of the request. The following provisions apply: (a) Copies may be sent in lieu of originals. (b) Except as otherwise provided in this paragraph, the local citizen
review boards and the staff provided for the boards must return all records
and copies received from the department to the department within seven
working days after completion of the review. The staff of a local citizen
review board may retain a reference copy of case materials used by the local
citizen review board to make its recommendation if the following apply: (A) The material is necessary for the ongoing work of the board with
regard to the particular case or to work of the board; and (B) The confidentiality of the material is continued and protected in the
same manner as other materials received from the department. Materials thus
retained by the local boards are exempt from disclosure under the public
records law. (3) If a local citizen review board is denied access to requested records,
it may request a court hearing. The court may require the organization in
possession of the records to show cause why the records should not be made
available as provided by this section. [1993 c.33 §28; 1993 c.546 §91; 1999
c.859 §17] DAG – Appendix 2.m
COURT APPOINTED SPECIAL ADVOCATES 419A.170 Appointment; duties; immunity; access to information; CASA Fund; rules.
(1) In every case under ORS chapter 419B, the court shall appoint a court appointed
special advocate. The court appointed special advocate is deemed a party in these
proceedings, and in the furtherance thereof, may be represented by counsel, file pleadings
and request hearings and may subpoena, examine and cross-examine witnesses. If the
court appointed special advocate is represented by counsel, counsel shall be paid from
funds available to the Court Appointed Special Advocate Volunteer Program. No funds
from the Public Defense Services Account or Judicial Department operating funds may
be used for this purpose. (2) Subject to the direction of the court, the duties of the court appointed special
advocate are to: (a) Investigate all relevant information about the case; (b) Advocate for the child or ward, ensuring that all relevant facts are brought before
the court; (c) Facilitate and negotiate to ensure that the court, Department of Human Services, if
applicable, and the child or ward’s attorney, if any, fulfill their obligations to the child or
ward in a timely fashion; and (d) Monitor all court orders to ensure compliance and to bring to the court’s attention
any change in circumstances that may require a modification of the court’s order. (3) If a juvenile court does not have available to it a CASA Volunteer Program, or a
sufficient number of qualified CASA volunteers, the court may, in fulfillment of the
requirements of this section, appoint a juvenile department employee or other suitable
person to represent the child or ward’s interest in court pursuant to ORS 419A.012 or
419B.195. (4) Any person appointed as a court appointed special advocate in any judicial
proceeding on behalf of the child or ward is immune from any liability for defamation or
statements made in good faith by that person, orally or in writing, in the course of the
case review or judicial proceeding. (5) Any person appointed as a court appointed special advocate, CASA Volunteer
Program director, CASA Volunteer Program employee or member of the board of
directors or trustees of any CASA Volunteer Program is immune from any liability for
acts or omissions or errors in judgment made in good faith in the course or scope of that
person’s duties or employment as part of a CASA Volunteer Program. (6) Whenever the court appoints a court appointed special advocate or other person
under subsections (1) to (3) of this section to represent the child or ward, it may require a
parent, if able, or guardian of the estate, if the estate is able, to pay, in whole or in part,
the reasonable costs of CASA services including reasonable attorney fees. The court’s
order of payment is enforceable in the same manner as an order of support under ORS
419B.408. (7) Upon presentation of the order of appointment by the court appointed special
advocate, any agency, hospital, school organization, division, office or department of the
state, doctor, nurse or other health care provider, psychologist, psychiatrist, police
department or mental health clinic shall permit the court appointed special advocate to
DAG – Appendix 2.m
inspect and copy any records relating to the child or ward involved in the case, without
the consent of the child, ward or parents. (8) All records and information acquired or reviewed by a court appointed special
advocate during the course of official duties are deemed confidential under ORS
419A.255. (9) For the purposes of a Child Abuse Prevention and Treatment Act (42 U.S.C. 5101
et seq.) grant to this state under Public Law No. 93-247, or any related state or federal
legislation, a court appointed special advocate or other person appointed pursuant to
subsections (1) to (3) of this section is deemed a guardian ad litem to represent the
interests of the child or ward in proceedings before the court. Any provisions of this
section and ORS 419B.035 and 419B.045 that cause this state to lose federal funding are
null and void. (10) There is created a Court Appointed Special Advocate (CASA) Fund in the
General Fund. The fund consists of all moneys credited to it. Moneys in the Court
Appointed Special Advocate Fund are continuously appropriated to the State
Commission on Children and Families and may be used only to carry out the purposes of
this section. The commission may apply for and receive funds from federal and private
sources for carrying out the provisions of this section. (11) The state commission may expend moneys from the Court Appointed Special
Advocate Fund directly or indirectly through contracts or grants for the creation,
supervision and operation of CASA Volunteer Programs statewide in accordance with the
provisions of ORS 419A.045 to 419A.048. The commission may also expend moneys
from the Court Appointed Special Advocate Fund to pay the reasonable costs of its
administration of the Court Appointed Special Advocate Fund. The commission shall
adopt rules for carrying out its responsibilities under this section and ORS 419B.035 and
419B.045. [1993 c.33 §44; 1993 c.546 §92; 1993 c.676 §41; 1997 c.130 §12; 2001 c.962
§91; 2003 c.396 §§25,26; 2005 c.755 §35] DAG – Appendix 2.n
419B.875 Parties to proceedings; rights of limited participation; status of
grandparents; interpreters. (1)(a) Parties to proceedings in the juvenile court under
ORS 419B.100 and 419B.500 are: (A) The child or ward; (B) The parents or guardian of the child or ward; (C) A putative father of the child or ward who has demonstrated a direct and
significant commitment to the child or ward by assuming, or attempting to assume,
responsibilities normally associated with parenthood, including but not limited to: (i) Residing with the child or ward; (ii) Contributing to the financial support of the child or ward; or (iii) Establishing psychological ties with the child or ward; (D) The state; (E) The juvenile department; (F) A court appointed special advocate, if appointed; (G) The Department of Human Services or other child-caring agency if the agency
has temporary custody of the child or ward; and (H) The tribe in cases subject to the Indian Child Welfare Act if the tribe has
intervened pursuant to the Indian Child Welfare Act. (b) An intervenor who is granted intervention under ORS 419B.116 is a party to a
proceeding under ORS 419B.100. An intervenor under this paragraph is not a party to a
proceeding under ORS 419B.500. (2) The rights of the parties include, but are not limited to: (a) The right to notice of the proceeding and copies of the petitions, answers, motions
and other papers; (b) The right to appear with counsel and, except for intervenors under subsection
(1)(b) of this section, to have counsel appointed as otherwise provided by law; (c) The right to call witnesses, cross-examine witnesses and participate in hearings; (d) The right of appeal; and (e) The right to request a hearing. (3) A putative father who satisfies the criteria set out in subsection (1)(a)(C) of this
section shall be treated as a parent, as that term is used in this chapter and ORS chapters
419A and 419C, until the court confirms his paternity or finds that he is not the legal or
biological father of the child or ward. (4) If no appeal from the judgment or order is pending, a putative father whom a court
of competent jurisdiction has found not to be the child or ward’s legal or biological father
or who has filed a petition for filiation that was dismissed is not a party under subsection
(1) of this section. (5)(a) A person granted rights of limited participation under ORS 419B.116 is not a
party to a proceeding under ORS 419B.100 or 419B.500 but has only those rights
specified in the order granting rights of limited participation. (b) Persons moving for or granted rights of limited participation are not entitled to
appointed counsel but may appear with retained counsel. (6) If a foster parent, preadoptive parent or relative is currently providing care for a
child or ward, the Department of Human Services shall give the foster parent,
preadoptive parent or relative notice of a proceeding concerning the child or ward. A
foster parent, preadoptive parent or relative providing care for a child or ward has the
DAG – Appendix 2.n
right to be heard at the proceeding. Except when allowed to intervene, the foster parent,
preadoptive parent or relative providing care for the child or ward is not considered a
party to the juvenile court proceeding solely because of notice and the right to be heard at
the proceeding. (7) When a legal grandparent of a child or ward requests in writing and provides a
mailing address, the Department of Human Services shall give the legal grandparent
notice of a hearing concerning the child or ward and the court shall give the legal
grandparent an opportunity to be heard. Except when allowed to intervene, a legal
grandparent is not considered a party to the juvenile court proceeding solely because of
notice and an opportunity to be heard. (8) Interpreters for parties and persons granted rights of limited participation shall be
appointed in the manner specified by ORS 45.275 and 45.285. [Formerly 419B.115; 2003
c.231 §§1,2; 2003 c.396 §§93a,94a; 2005 c.160 §4; 2005 c.450 §8; 2007 c.454 §11; 2007
c.611 §9] DAG – Appendix 2.o
192.445 Nondisclosure on request of home address, home telephone number and
electronic mail address; rules of procedure; duration of effect of request; liability;
when not applicable. (1) An individual may submit a written request to a public body
not to disclose a specified public record indicating the home address, personal telephone
number or electronic mail address of the individual. A public body may not disclose the
specified public record if the individual demonstrates to the satisfaction of the public
body that the personal safety of the individual or the personal safety of a family member
residing with the individual is in danger if the home address, personal telephone number
or electronic mail address remains available for public inspection. (2) The Attorney General shall adopt rules describing: (a) The procedures for submitting the written request described in subsection (1) of
this section. (b) The evidence an individual shall provide to the public body to establish that
disclosure of the home address, telephone number or electronic mail address of the
individual would constitute a danger to personal safety. The evidence may include but is
not limited to evidence that the individual or a family member residing with the
individual has: (A) Been a victim of domestic violence; (B) Obtained an order issued under ORS 133.055; (C) Contacted a law enforcement officer involving domestic violence or other
physical abuse; (D) Obtained a temporary restraining order or other no contact order to protect the
individual from future physical abuse; or (E) Filed other criminal or civil legal proceedings regarding physical protection. (c) The procedures for submitting the written notification from the individual that
disclosure of the home address, personal telephone number or electronic mail address of
the individual no longer constitutes a danger to personal safety. (3) A request described in subsection (1) of this section remains effective: (a) Until the public body receives a written request for termination but no later than
five years after the date that a public body receives the request; or (b) In the case of a voter registration record, until the individual must update the
individual’s voter registration, at which time the individual may apply for another
exemption from disclosure. (4) A public body may disclose a home address, personal telephone number or
electronic mail address of an individual exempt from disclosure under subsection (1) of
this section upon court order, on request from any law enforcement agency or with the
consent of the individual. (5) A public body may not be held liable for granting or denying an exemption from
disclosure under this section or any other unauthorized release of a home address,
personal telephone number or electronic mail address granted an exemption from
disclosure under this section. (6) This section does not apply to county property and lien records. [1993 c.787 §5;
1995 c.742 §12; 2003 c.807 §1] DAG - Appendix 2.p
411.117 Requirements when applicants or recipients victims of domestic violence;
identification. (1) The Department of Human Services shall: (a) Identify applicants for and recipients of assistance under the temporary assistance
to needy families program who are currently victims of domestic violence, have been
victims of domestic violence or are at risk of victimization by domestic violence. (b) Ensure that appropriate individuals on the local level who provide assistance to
domestic violence victims participate in individualized case management with the
department. (c) Refer individuals identified under this subsection to appropriate counseling and
support services. (d) Waive or modify any temporary assistance to needy families program
requirements that may make it more difficult for individuals identified under this
subsection to escape domestic violence or place those individuals at risk of further or
future domestic violence, including but not limited to: (A) Time limits on receipt of benefits; (B) Work requirements; (C) Paternity establishment and child support cooperation requirements; (D) Residency requirements; (E) Family cap provisions; and (F) Penalties for failure to comply with a program requirement. (e) Maintain emergency assistance eligibility and payment limits for victims of
domestic violence or persons at risk of victimization by domestic violence identified
under this section at no less than the levels in effect on January 1, 1997. (f) Allow eligibility for temporary assistance to needy families for persons identified
under this section as victims of domestic violence or persons identified as at risk of
victimization by domestic violence who would otherwise be eligible except for the fact
that they are noncitizens. (2) All information received by the department in identifying the individuals
described in subsection (1) of this section shall remain confidential. (3) For purposes of this section, “domestic violence” means the occurrence of one or
more of the following acts between family members, intimate partners or household
members: (a) Attempting to cause or intentionally, knowingly or recklessly causing physical
injury or emotional, mental or verbal abuse; (b) Intentionally, knowingly or recklessly placing another in fear of imminent serious
physical injury; (c) Committing sexual abuse in any degree as defined in ORS 163.415, 163.425 and
163.427; or (d) Using coercive or controlling behavior. [1997 c.330 §2] DAG - Appendix 2.q
DEPARTMENT OF HUMAN SERVICES,
ADMINISTRATIVE SERVICES DIVISION AND DIRECTOR'S
OFFICE
DIVISION 14
PRIVACY AND CONFIDENTIALITY
Privacy of Protected Information
OAR 407-014-0020
Uses and Disclosures of Client or Participant Protected Information
(1) Uses and disclosures with individual authorization. The Department must obtain a
completed and signed authorization for release of information from the individual, or the
individual’s personal representative, before obtaining or using protected information
about an individual from a third party or disclosing protected information about the
individual to a third party.
(a) Uses and disclosures must be consistent with what the individual has approved on the
signed authorization form approved by the Department.
(b) An individual may revoke an authorization at any time. The revocation must be in
writing and signed by the individual, except that substance abuse treatment patients may
orally revoke an authorization to disclose information obtained from substance abuse
treatment programs. No revocation shall apply to information already released while the
authorization was valid and in effect.
(2) Uses and disclosures without authorization. The Department may use and disclose
information without written authorization in the following circumstances:
(a) The Department may disclose information to individuals who have requested
disclosure to themselves of their information, if the individual has the right to access the
information under OAR 407-014-0030(6).
(b) If the law requires or permits the disclosure, and the use and disclosure complies with,
and is limited to, the relevant requirements of the relevant law.
(c) For treatment, payment, and health care operations the Department may disclose the
following information:
(A) Activities involving the current treatment of an individual, for the Department or
health care provider;
(B) Payment activities, for the Department, covered entity, or health care provider;
DAG - Appendix 2.q
(C) Protected health information for the purpose of health care operations; and
(D) Substance abuse treatment information, if the recipient has a Qualified Service
Organization Agreement with the Department.
(d) Psychotherapy notes. The Department may only use and disclose psychotherapy notes
in the following circumstances:
(A) In the Department’s supervised counseling training programs;
(B) In connection with oversight of the originator of the psychotherapy notes; or
(C) To defend the Department in a legal action or other proceeding brought by the
individual.
(e) Public health activities.
(A) The Department may disclose an individual’s protected information to appropriate
entities or persons for governmental public health activities and for other purposes
including but not limited to:
(i) A governmental public health authority that is authorized by law to collect or receive
protected information for the purpose of preventing or controlling disease, injury, or
disability. This includes but is not limited to reporting disease, injury, and vital events
such as birth or death; and the conducting of public health surveillance, investigations,
and interventions;
(ii) An official of a foreign government agency that is acting in collaboration with a
governmental public health authority;
(iii) A governmental public health authority, or other government authority that is
authorized by law to receive reports of child abuse or neglect;
(iv) A person subject to the jurisdiction of the federal Food and Drug Administration
(FDA), regarding an FDA-regulated product or activity for which that person is
responsible for activities related to the quality, safety, or effectiveness of an FDAregulated product or activity; or
(v) A person who may have been exposed to a communicable disease, or may be at risk
of contracting or spreading a disease or condition, if the Department or other public
health authority is authorized to notify the person as necessary in conducting a public
health intervention or investigation.
(B) Where state or federal law prohibits or restricts use and disclosure of information
obtained or maintained for public health purposes, the Department shall deny the use and
disclosure.
DAG - Appendix 2.q
(f) Child abuse reporting and investigation. If the Department has reasonable cause to
believe that a child is a victim of abuse or neglect, the Department may disclose protected
information to appropriate governmental authorities authorized by law to receive reports
of child abuse or neglect (including reporting to the Department protective services staff
if appropriate). If the Department receives information as the child protective services
agency, the Department may use and disclose the information consistent with its legal
authority and in compliance with any applicable state and federal regulations.
(g) Adult abuse reporting and investigation. If the Department has reasonable cause to
believe that a vulnerable adult is a victim of abuse or neglect, the Department may
disclose information, as required by law, to a government authority or regulatory agency
authorized by law to receive reports of abuse or neglect including but not limited to a
social service or protective services agency (which may include the Department)
authorized by law to receive such reports. Vulnerable adults are adults age 65 or older
and persons with disabilities. If the Department receives information as the social
services or protective services agency, the Department may use and disclose the
information.
(h) Health oversight activities. The Department may disclose information without
authorization for health oversight activities, including audits; civil, criminal, or
administrative investigations, prosecutions, licensing or disciplinary actions; Medicaid
fraud; or other necessary oversight activities.
(i) Administrative and court hearings, grievances, investigations, and appeals.
(A) The Department may use or disclose information for an investigation, administrative
or court hearing, grievance, or appeal about an individual’s eligibility or right to receive
Department benefits or services.
(B) If the Department has obtained information in performing its duties as a health
oversight agency, public health authority, protective service entity, or public benefit
program, the Department may use or disclose that information in an administrative or
court hearing consistent with the other privacy requirements applicable to that program,
service, or activity.
(j) Court orders. The Department may disclose information for judicial or administrative
proceedings in response to a court order, subpoena, discovery request, or other legal
process. If a court orders the Department to conduct a mental examination pursuant to
ORS 161.315, 161.365, 161.370, or 419B.352, or orders the Department to provide any
other report or evaluation to the court, the examination, report, or evaluation shall be
deemed to be required by law for purposes of HIPAA.
(k) Law enforcement purposes. For limited law enforcement purposes, the Department
may report certain injuries or wounds; provide information to identify or locate a suspect,
victim, or witness; alert law enforcement of a death as a result of criminal conduct; and
DAG - Appendix 2.q
provide information which constitutes evidence of criminal conduct on Department
premises.
(A) The Department may provide client information to a law enforcement officer in any
of the following situations:
(i) The law enforcement officer is involved in carrying out any investigation, criminal, or
civil proceedings connected with administering the program from which the information
is sought;
(ii) A Department employee may disclose information from personal knowledge that
does not come from the client’s interaction with the Department;
(iii) The disclosure is authorized by statute or administrative rule;
(iv) The information informs law enforcement of a death as a result of criminal conduct;
(v) The information constitutes evidence of criminal conduct on Department premises; or
(vi) The disclosure is necessary to protect the client or others, and the client poses a threat
to his or her safety or to the safety of others.
(B) Except as provided in section (2)(k)(C) of this rule, the Department may give a
client’s current address, Social Security number, and photo to a law enforcement officer
if the law enforcement officer makes the request in the course of official duty, supplies
the client’s name, and states that the client:
(i) Is a fugitive felon or is violating parole, probation, or post-prison supervision;
(ii) For all public assistance programs, has information that is necessary for the officer to
conduct official duties, and the location or apprehension of the client is within the
officer’s official duties; or
(iii) For clients only in the Food Stamp program, has information that is necessary to
conduct an official investigation of a fugitive felon or person violating parole, probation,
or post-prison supervision.
(C) If domestic violence has been identified in the household, the Department may not
release information about a victim of domestic violence unless a member of the
household is either wanted as a fugitive felon or is violating parole, probation, or postprison supervision.
(D) For purposes of this subsection, a fugitive felon is a person fleeing to avoid
prosecution or custody for a crime, or an attempt to commit a crime, that would be
classified as a felony.
DAG - Appendix 2.q
(E) For purposes of this section, a law enforcement officer is an employee of the Oregon
State Police, a county sheriff’s department, or a municipal police department, whose
official duties include arrest authority.
(l) Use and disclosure of information about deceased individuals.
(A) The Department may disclose individual information to a coroner or medical
examiner for the purpose of identifying a deceased individual, determining cause of death,
or other duties authorized by law.
(B) The Department may disclose individual information to funeral directors as needed to
carry out their duties regarding the decedent. The Department may also disclose
individual information prior to, and in anticipation of, the death.
(m) Organ or tissue donation. The Department may disclose individual information to
organ procurement organizations or other entities engaged in procuring, banking, or
transplanting cadaver organs, eyes, or tissue for the purpose of facilitating transplantation.
(n) Research. The Department may disclose individual information without authorization
for research purposes, as specified in OAR 407-014-0060.
(o) Threat to health or safety. To avert a serious threat to health or safety the Department
may disclose individual information if:
(A) The Department believes in good faith that the information is necessary to prevent or
lessen a serious and imminent threat to the health or safety of a person or the public; and
(B) The report is to a person or persons reasonably able to prevent or lessen the threat,
including the target of the threat.
(p) National security and intelligence. The Department may disclose information to
authorized federal officials for lawful intelligence, counterintelligence, and other national
security activities.
(q) Correctional institutions and law enforcement custody situations. The Department
may disclose information to a correctional institution or a law enforcement official
having lawful custody of an inmate or other person, for the limited purpose of providing
health care or ensuring the health or safety of the person or other inmates.
(r) Emergency treatment. In case of an emergency, the Department may disclose
individual information to the extent needed to provide emergency treatment.
(s) Government entities providing public benefits. The Department may disclose
eligibility and other information to governmental entities administering a government
program providing public benefits.
DAG - Appendix 2.q (3) Authorization not required if opportunity to object given. The Department may use
and disclose an individual’s information without authorization if the Department informs
the individual in advance and gives the individual an opportunity to either agree or refuse
or restrict the use and disclosure.
(a) These disclosures are limited to disclosure of information to a family member, other
relative, close personal friend of the individual, or any other person named by the
individual, subject to the following limitations:
(A) The Department may disclose only the protected information that directly relates to
the person’s involvement with the individual’s care or payment for care.
(B) The Department may use and disclose protected information for notifying, identifying,
or locating a family member, personal representative, or other person responsible for care
of the individual, regarding the individual’s location, general condition, or death. For
individuals who had resided at one time at the state training center, OAR 411-3200090(6) addresses family reconnection.
(C) If the individual is present for, or available prior to, a use and disclosure, the
Department may disclose the protected information if the Department:
(i) Obtains the individual’s agreement;
(ii) Provides the individual an opportunity to object to the disclosure, and the individual
does not object; or
(iii) Reasonably infers from the circumstances that the individual does not object to the
disclosure.
(D) If the individual is not present, or the opportunity to object to the use and disclosure
cannot practicably be provided due to the individual’s incapacity or an emergency
situation, the Department may disclose the information if, using professional judgment,
the Department determines that the use and disclosure is in the individual’s best interests.
(b) Exception. For individuals referred to or receiving substance abuse treatment, mental
health, or vocational rehabilitation services, the Department shall not use or disclose
information without written authorization, unless disclosure is otherwise permitted under
42 CFR part 2 or ORS 179.505.
(c) Personal representative. The Department must treat a personal representative as the
individual for purposes of these rules, except that:
(A) A personal representative must be authorized under state law to act on behalf of the
individual with respect to use and disclosure of information. The Department may require
a personal representative to provide a copy of the documentation authorizing the person
to act on behalf of the individual.
DAG - Appendix 2.q
(B) The Department may elect not to treat a person as a personal representative of an
individual if:
(i) The Department has a reasonable belief that the individual has been or may be
subjected to domestic violence, abuse, or neglect by the person;
(ii) The Department, in the exercise of professional judgment, decides that it is not in the
best interest of the individual to treat the person as the individual’s personal
representative.
(4) Redisclosure. The Department must inform the individual that information held by the
Department and authorized by the individual for disclosure may be subject to redisclosure
and no longer protected by these rules.
(5) Specific written authorization. If the use or disclosure of information requires an
authorization, the authorization must specify that the Department may use or disclose
vocational rehabilitation records, alcohol and drug records, HIV/AIDS records, genetics
information, and mental health or developmental disability records held by publicly
funded providers.
(a) Pursuant to federal regulations at 42 CFR part 2 and 34 CFR 361.38, the Department
may not make further disclosure of vocational rehabilitation and alcohol and drug
rehabilitation information without the specific written authorization of the individual to
whom it pertains.
(b) Pursuant to ORS 433.045 and OAR 333-012-0270, the Department may not make
further disclosure of individual information pertaining to HIV/AIDS.
(c) Pursuant to ORS 192.531 to 192.549, the Department may not make further disclosure
pertaining to genetic information.
(6) Verification of person or entity requesting information. The Department may not
disclose information about an individual without first verifying the identity of the person
or entity requesting the information, unless the Department workforce member fulfilling
the request already knows the person or has already verified identity.
(7) Whistleblowers. The Department may disclose an individual’s protected health
information under the HIPAA privacy rules under the following circumstances:
(a) The Department workforce member or business associate believes in good faith that
the Department has engaged in conduct that is unlawful or that otherwise violates
professional standards or Department policy, or that the care, services, or conditions
provided by the Department could endanger Department staff, individuals in Department
care, or the public; and
DAG - Appendix 2.q
(b) The disclosure is to a government oversight agency or public health authority, or an
attorney of a Department workforce member or business associate retained for the
purpose of determining the legal options of the workforce member or business associate
with regard to the conduct alleged under section (7)(a) above; and
(c) Nothing in this rule is intended to interfere with ORS 659A.200 to 659A.224
describing the circumstances applicable to disclosures by Department workforce or
business associates.
Stat. Auth.: ORS 409.050
Stats. Implemented: ORS 409.010, 433.045
Hist.: OMAP 26-2003, f. 3-31-03 cert. ef. 4-1-03; Renumbered from 410-014-0020 by
DHSD 5-2009, f. & cert. ef. 7-1-09
DAG – Appendix 3
FEDERAL AND STATE CONFIDENTIALITY AND DISCLOSURE STATUTES
MOST COMMONLY APPLICABLE TO RECORDS FOUND IN
DHS CHILD WELFARE FILES
A.
Introduction
Each record request must be reviewed to determine the nature of the record requested and
the applicable federal and state confidentiality statutes that may apply to the record. This outline
reflects the most common confidentiality and disclosure statutes applicable to the records
frequently found in DHS child welfare files. Individual files may contain records that are
governed by other statutes.
B.
Federal and State Statutes and Rules
1.
Child Abuse Reports and Records
a.
b.
c.
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Federal Law -- Child Abuse and Neglect Prevention and Treatment Act
(CAPTA). 42 USC § 5101 – 5116(i).
-
Requires States preserve the confidentiality of all records "in order to protect
the rights of the child and the child's parents or guardians." 42 USC §
5106a(b)(2)(A)(viii).
-
State must ensure that disclosure of information concerning child abuse or
neglect of a specific person is made only to persons the State determines has a
need to know the information directly related to the purposes of child abuse
program. 42 USC § 5106a(b)(2)(A)(viii)(I-VI).
-
Allows disclosure to government entity with need to know information to
carry out duty to protect children. 42 USC §§ 5106a(b)(2)(A)(ix).
-
Authorizes public disclosure of findings or information about a case of child
abuse or neglect that resulted in a child fatality or near fatality. 42 USC §§
5106a(b)(2)(A)(vii) & (x).
Federal Regulations implementing CAPTA. 45 CFR § 1340.14(i).
-
Requires state have “statute that all records concerning reports and reports of
child abuse and neglect are confidential and that their unauthorized disclosure
is a criminal offense." 45 CFR § 1340.14(i)(1).
-
List of persons or agencies that may be authorized to obtain records under
state law. 45 CFR § 1340.14(i)(2)(i-xi).
State Law -- Child Abuse Reporting Statute -- ORS 419B.035.
-
2.
DAG – Appendix 3
Excludes child abuse reports and records from application of the Public
Records law. ORS 419B.035(1).
-
Requires disclosure to certain persons including physicians for the child, law
enforcement, attorneys for the child and parent in the juvenile court
proceeding, citizen review board, court appointed special advocate, Child
Care Division for purpose of certifying, registering or otherwise regulating
child care facilities. 419B.035 (1)(a) – (e).
-
Permits disclosures based on certain findings including: 1) disclosure is in the
best interests of the affected child AND necessary for the department to
administer its child welfare service; or 2) disclosure is necessary to
investigate, prevent or treat child abuse/neglect or to protect children from
child abuse/neglect. ORS 419B.035(3).
-
Requires that all records disclosed by DHS must remain confidential in the
hands of the recipient subject to criminal penalty for unauthorized
redisclosure. ORS 419B.035(7) & (9).
DHS Child Welfare Records
a.
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State Law -- Confidentiality and disclosure of DHS records -- ORS 409.225.
-
DHS shall not disclose or use contents of any records, files, papers or
communications concerning an individual child, family, or other recipient of
DHS services for purposes other than those directly connected with the
administration of child welfare laws or unless required or authorized by ORS
419A.255 or ORS 419B.035. ORS 409.225(1).
-
Unless public records law exemption applies, requires disclosure of certain
records to certain persons in specified circumstances including the juvenile
court and parents of children receiving services on a voluntary basis. ORS
409.225(2)(c).
-
Unless public records law exemption applies, requires disclosure, if in the best
interests of the child, to certain persons in specified circumstances, including
other DHS employees, treatment providers, foster or adoptive parents and
school officials. ORS 409.225(3)(a) & (b).
-
Requires that all records disclosed must be kept confidential by the person to
whom the records were disclosed and used only for the purpose for which
disclosure was made. ORS 409.225(4)
-
Requires DHS disclose information related to its activities/responsibilities in
cases where child abuse has resulted in a fatality, near fatality or an adult has
been charged with crime related to child abuse or neglect. ORS 409.225(6).
DAG – Appendix 3
3.
Juvenile court records
a.
b.
c.
Juvenile court legal file -- ORS 419A.255(1) & (3).
-
Legal file (record of the case) contains summons, petition, motions, other
pleadings and other papers filed with the court, excluding reports and other
material related to the child's history and prognosis.
-
Not available for public inspection.
-
Open to inspection by child, parent, guardian, court appointed special
advocate, surrogate or intervenor under ORS 109.119(1) and their attorneys.
-
Attorneys for listed persons may have copies of the record.
-
Juvenile court legal file may be disclosed with consent of juvenile court. ORS
419A.255(3).
Juvenile court social file -- ORS 419A.255(2), (3) & (6).
-
Reports and other materials related to the child's history or prognosis are
privileged and, except at the request of the child or youth, may not be
disclosed to anyone except the judge of the juvenile court, those acting under
the judge's direction and to attorneys of record for the child or the child's
parent or guardian, CASA, surrogate or intervenor under ORS 109.119(1).
ORS 419A.255(2).
-
Juvenile court social file may be disclosed with consent of juvenile court.
ORS 419A.255(3).
-
May disclose history and prognosis information to evaluate eligibility for
special education, for presentence reports and in other juvenile court
proceedings and appeals regarding the child. ORS 419A.255(3).
-
May disclose history and prognosis information if clear and present danger to
another person or to society. ORS 419A.255 (7)(a).
Juvenile court status -- ORS 419A.255(5).
-
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May disclose the name and date of birth of the youth, basis of juvenile court
jurisdiction over youth or youth offender and date, time and place of juvenile
proceedings in delinquency action. May also disclose the delinquent act
alleged in the petition, that portion of court order providing for legal
disposition where jurisdiction is based on delinquency and the name and
address of the youth’s parents.
DAG – Appendix 3
d.
e.
4.
District Attorney, Assistant Attorney General, juvenile department, DHS and
OYA inspection and disclosure of records. ORS 419A.257
-
DA or AAG representing the state in a juvenile proceeding, juvenile
department, DHS and OYA may inspect and obtain records, reports and other
materials described in ORS 419A.255 (1) & (2) to the same extent other
parties and attorneys for other parties may inspect and obtain records. ORS
419A.257(1)
-
ORS 419A.255 does not prohibit DA or AAG representing state in a juvenile
proceeding, juvenile department, DHS, OYA or other parties in the juvenile
proceeding from disclosing to each other the records, reports and other
material described in ORS 419A.255 (1) & (2) if disclosure is reasonably
necessary to perform official duties related to the involvement of the child,
ward, youth or youth offender with the juvenile court or juvenile department.
ORS 419A.257(2).
-
Redisclosure is restricted and the records may be used or disclosed only as
provided in ORS 419A.257(3).
Juvenile court record expunction -- ORS 419A.262(19), (23),(24), and (25).
-
Upon entry of an expunction order, the contact that is the subject of the
expunged order shall not be disclosed. DHS must respond that no record or
reference to the contact exists. ORS 419A.262 (19).
-
Intentional violation of the confidentiality provisions of expunction statute is
cause for dismissal for cause of a public employee and may result in criminal
penalties. ORS 419A.262 (24) & (25).
Public Assistance – Related Records
a.
b.
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Federal Law -- Aid to Families with Dependent Children -- Foster Care
Payments (Title IV-E of the Social Security Act). 42 USC § 671.
-
State must provide safeguards that restrict the use or disclosure of information
concerning applicants or recipients to purposes directly connected with the
administration of the program. 42 USC § 671(a)(8).
-
May disclose information about known or suspected child abuse or neglect to
appropriate authorities. 42 USC §§ 671(a)(9)(A) & (B).
Federal Regulations -- 45 CFR § 1355.21(a) and 1355.30 incorporating by
references 45 CFR § 205.50.
-
-
c.
d.
5.
DAG – Appendix 3
Requires the State to have a statute that imposes legal sanctions on the use or
disclosure of information concerning applicants or recipients except for
enumerated purposes directly connected with administration of the program.
Safeguards information such as names, addresses, social and economic
conditions and medical information.
State Law -- ORS 412.074 & 418.990(1).
-
No person shall, except for purposes directly connected with the
administration of ADC, disclose or receive any information concerning
persons applying for or receiving such aid. ORS 412.074(1).
-
Subject to criminal penalties. ORS 418.990(1).
State Law -- ORS 411.320 & 411.990(1).
-
For protection of applicant and recipients of public assistance, cannot disclose
or use records for purposes other than the administration of public assistance
laws. ORS 411.320.
-
Subject to criminal penalties for violation. ORS 411.990(1)
Medical information
a.
Federal Law -- Medicaid (Title XIX of the Social Security Act). 42 USC §
1396a(7).
-
b.
c.
Federal Regulations implementing Medicaid. 42 CFR 431.301- 431.307.
-
State must have a statute that imposes legal sanctions and safeguards that
restrict the use and disclosure of information. – 42 CFR 431.300.
-
Rules specify what constitutes purposes directly connected with the
administration of the program. 42 CFR 431.301- 431.307.
Federal Law -- Health Insurance Portability and Accountability Act (HIPAA).
42 USC §§ 1302 and 1320d.
-
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State must provide safeguards that restrict the use or disclosure of information
concerning applicants and recipients to purposes directly connected with the
administration of the program.
Prohibits use or disclosure of protected health information (PHI), which
includes information related to the past, present or future physical or mental
condition of an individual that identifies the individual directly or indirectly,
DAG – Appendix 3
except in compliance with HIPAA or state law.
d.
-
Preempts state law to the extent HIPAA is more protective than state law.
-
Permits use or disclosure of PHI with proper authorization, if required by law,
pursuant to court order in response to proper subpoena.
Federal Regulations implementing HIPAA -- 45 CFR Parts 160 & 164.
-
6.
Extensive federal regulations describe requirements for authorization and
subpoenas and other exceptions to restricted use and disclosure of PHI.
e.
State Law -- Physician-patient privilege. ORS 40.235.
f.
State Law -- Health care provider's authority to disclose information during child
abuse investigation. ORS 419B.050.
-
With notice from either a law enforcement agency or DHS that a child abuse
investigation is being conducted, a “health care provider” must permit law
enforcement agency, DHS, member agency or member of county
multidisciplinary child abuse team to inspect and copy medical records,
including but not limited to, prenatal and birth records, of the child involved
in the investigation without the consent of the child, parent or guardian. ORS
419B.050(1).
-
“Health care provider” who in good faith discloses records is not civilly or
criminally liable for disclosure of a child's medical records even without
consent of the child or guardian. 419B.050(1).
-
“Health care provider” has meaning given in ORS 192.519. 419B.050(2).
Substance abuse treatment records
a.
Federal Law -- 42 USC § 290dd-2 (substance abuse education, prevention,
treatment, rehabilitation or research records).
-
b.
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Makes confidential records regarding identity, diagnosis, prognosis or
treatment of patient except in enumerated circumstances.
Federal Regulations -- 42 CFR Part 2.
-
Minor patient acting alone has legal capacity under applicable state law to
apply and obtain alcohol or drug abuse treatment and any written consent for
disclosure may be given only by the minor patient
-
Minor patient where a state requires consent of a parent, guardian or other
DAG – Appendix 3
person for a minor to obtain alcohol or drug abuse treatment, any written
consent for disclosure must be given by both the minor and his/her parent,
guardian, or other person authorized to act on minor’s behalf
-
c.
Fact relevant to reducing threat to life or physical well being of individual
may be disclosed to parent, guardian or other person authorized to act on
minor’s behalf if the minor applicant lacks capacity due to extreme youth or
mental or physical condition, or if situation poses threat which may be
reduced by communicating facts to person of authority.
State Law -- ORS 430.399(5).
- Requires client consent for the release of treatment records.
7.
Mental Health Treatment Records
a.
b.
8.
State Law -- ORS 179.505
-
Broad definition of "provider" and protected records. ORS 179.505(1)(b) &
(c).
-
Restricts disclosure of patient records without consent. ORS 179.505(2-17).
Psychotherapist-patient privilege ORS 40.230; social worker privilege ORS
40.250; licensed marriage and family therapists privilege ORS 40.262.
HIV Information
a.
State Law -- ORS 433.045(3)
-
9.
May not be disclosed without consent, regardless of how the information is
obtained, even if it is received directly from the tested individual.
Education records
a.
Federal Law -- Family Educational and Privacy Rights Act. 20 USC § 1232g.
-
b.
Federal Regulations implementing FEPRA. 34 CFR Part 99.
-
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Requires consent of parent, student or educational surrogate to permit the
release of records except in enumerated circumstances.
Describes circumstances where release of information is authorized and limits
on redisclosure of information.
c.
DAG – Appendix 3
Individuals with Disabilities Education Act. 20 USC § 1417(c).
d.
Federal Regulations implementing IDEA. 34 CFR § 300.500 et seq.
-
e.
State Law -- ORS 326.565, 326.575, 336.187.
-
10.
Confidentiality requirements generally.
Student records shall be confidential.
Criminal history
a.
Federal Regulations implementing a Federal Law -- 28 CFR Part 20.
-
b.
Restrictions on disclosure of federal and state criminal offender information
records.
State Law -- ORS 181.548.
-
Confidentiality of state criminal record information. See also Oregon State
Policy Administrative Rules. OAR Chapter 257..
11.
Social Security number -- Section 7 of the Privacy Act of 1974, 5 USC § 552a note 36.
12.
Adoption records -- ORS 7.211, ORS 109.440.
13.
Public records law -- ORS 192.410 to 192.505
a.
Criminal Investigatory Material exemption -- 192.501(3).
- Conditionally exempts “investigatory information compiled for criminal law
purposes.” The record of an arrest or the report of a crime must be disclosed
unless and only for so long as there is a clear need to delay disclosure in the
course of a specific investigation, including the need to protect the complaining
party or the victim. Nothing in this exemption limits the constitutional rights
guaranteed or granted by statute, to disclosure or discovery in criminal cases. For
purposes of this subsection, the record of an arrest or the report of a crime
includes, but is not limited to:
(a) The arrested person’s name, age, residence, employment, marital status
and similar biographical information;
(b) The offense for which the arrested person is charged:
(c) The conditions of release pursuant to ORS 135.230 to 135.290;
(d) The identity of and biographical information concerning both
complaining party and victim;
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(e) The identity of the investigating and arresting agency and the length of
the investigation:
(f) The circumstances of the arrest, including time, place, resistance,
pursuit and weapons used; and
(g) Such information as may be necessary to enlist public assistance in
apprehending fugitives from justice
b.
Personnel Discipline Actions --192.501(12).
- Conditionally exempts “a personnel discipline action, or materials or documents
supporting that action.”
c.
Internal Advisory Communications -- 192.502(1).
- Exempts “communications within a public body or between public bodies of an
advisory nature to the extent that they cover other than purely factual materials
and are preliminary to any final agency determination of policy or action.” This
exemption does not apply unless the public body shows that in the particular
instance the public interest in encouraging frank communication between officials
and employees of public bodies clearly outweighs the public interest in disclosure.
d.
Personal Privacy Exemption -- 192.502(2).
- Exempts “information of a personal nature such as but not limited to that kept in
a personal, medical or similar file, if public disclosure would constitute an
unreasonable invasion of privacy, unless the public interest by clear and
convincing evidence requires disclosure in the particular instance.” The party
seeking disclosure has the burden of showing that public disclosure would not
constitute an unreasonable invasion of privacy.
e.
Confidential Submissions -- 192.502(4).
- Exempts “information submitted to a public body in confidence and not
otherwise required by law to be submitted, where such information should
reasonably be considered confidential, the public body has obliged itself in good
faith not to disclose the information, and when the public interest would suffer by
the disclosure.”
f.
Federal Law Exemption -- 192.502(8).
- Exempts “any public records or information the disclosure of which is
prohibited by federal law or regulations.”
g.
Oregon State Law Exemptions -- 192.502(9).
- Exempts “public records or information the disclosure of which is prohibited or
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DAG – Appendix 3
restricted or otherwise made confidential or privileged under Oregon law.”
h.
Transferred Records -- 192.502(10).
- Exempts records “furnished by the public body originally compiling, preparing
or receiving them to any other public officer or public body in connection with
performance of the duties of the recipient, if the considerations originally giving
rise to the confidential or exempt nature of the public records or information
remain applicable.”
C.
Significant Case law
State v. Graville, 304 Or. 428, 746 P.2d 715 (1987) (Notes of the caseworker’s
conversations with the victim regarding the events to which they testified were subject to
discovery in criminal proceeding. Also, in camera review by the trial judge of Children’s
Services Division files was required.)
State v. Warren, 304 Or. 424, 746 P.2d 711 (1988) (Children Services Division files
were subject to discovery in criminal proceeding, with limitations, and the trial court should have
conducted an in camera inspection of the files to determine whether any exculpatory evidence
was contained therein.)
State ex rel Dugan v. Tiktin, 313 Or 607, 837 P2d 959 (1992) (SCF file contains
information made confidential by many sources and requiring court to conduct in camera review
before authorizing the disclosure of confidential records).
State ex rel Carlile v. Lewis, 310 Or 541, 800 P2d 786 (1990) (Trial judge must conduct
in camera review of SCF file containing confidential information that court cannot delegate
review to defense counsel, who requested the file for discovery purposes.)
State v. Weaver, 139 Or App 207, 911 P2d 969 (1996), rev den 323 Or 483 (1996)
(Children Services Division records are confidential by statute; therefore, the trial court must
undertake in camera inspection of such files requested in discovery by criminal defense).
Kahn v. Oregon, 173 Ore. App. 127, 20 P.3d 837 (2001) (ORCP 36 applies in civil
proceeding and SCF records, already in the possession of the plaintiff, were subject to discovery
by respondent unless privileged. SCF records protected by ORS § 409.225 are privileged only if
they are also records ‘relating to a child’s history and prognosis’ within the meaning of ORS §
419A.255(2)).
State ex rel State Office for Services to Children and Families v. Curtis Williams, Cherise
Williams and Dennise Williams, 168 Or. App. 538, 7 P.3d 655 (200) (To the extent that ORS §§
419A.255 and 419B.035(1) imposed a duty on DHS to keep adoptive home studies confidential,
the prohibition was against public disclosure for purposes other than those directly connected
with the administration of child welfare laws, and statutory exceptions consistently allow
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DAG – Appendix 3
disclosure to the children’s attorney.)
State ex rel State Office for Services to Children and Families v. Mitchell, Mitchell and
Boring, 182 Or. App. 402, 49 P.3d 838 (2002) (Balancing the interest of the CASA to have
access to information about prospective adoptive parents against the privacy interests of adoptive
families leads to the conclusion that the disclosure to a CASA of home studies that are not
submitted to adoption committee is not justified by a CASA’s statutory duties or role but that
studies submitted to adoption committee may be disclosed to CASA.)
D.
Attorney General Public Records Orders
Brian Posewitz of Tonkin Torp, as counsel for East Oregonian Publishing Company,
requested copy of recording of and/or transcription of three juvenile hearings. Citing ORS
419A.255 the request was denied because the statute makes any record of a proceeding involving
a child or youth confidential, including a recording or transcript of the hearing. Also, the request
was denied under the Oregon Constitution Article 1, §10. Public Records Order, March 5, 2003,
Posewitz.
Noelle Crombie, of The Oregonian, requested “the personnel review report in the matter
of Darlene Walsh-Buntrock and Colin Fitzpatrick, in its entirety.” Citing ORS 192.501(3) the
request was denied because the material requested was subpoenaed by the District Attorney’s
office in a criminal investigation. Under ORS 192.501(3) the reports will “remain confidential
because disclosure likely would interfere with law enforcement proceedings.” Also, ORS
419B.035, in part, protects the confidentiality of information identifying child abuse reports, thus
serving as a basis to deny the request, as well. Public Records Order, February 11, 2003,
Crombie.
Noelle Crombie, of The Oregonian, requested DHS disclose “the agency’s records
concerning its care for and supervision of Miranda Gaddis and Ashley Pond and its records
concerning all internal reviews, reports, and investigations which were conducted by or on behalf
of the agency concerning the discharge of its responsibilities to Miranda and Ashley and which
have not been previously been made public.” Citing ORS 192.501(3) the request was denied
because the requested materials met the criminal investigatory exemption. Also, the public
interest at the current time did not justify release of the records either. Public Records Order,
December 18, 2002, Crombie.
Steve Suo, of The Oregonian, requested that “selected pieces of information about
people treated for drug and alcohol abuse by publicly funded facilities in Oregon” be made
available. This request was denied through an application of federal law, 42 USC § 290dd-2 &
42 CFR § 2.4, which restricts DHS’s use and disclosure of patient identifying information.
Public records order, January 16, 2003, Suo.
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DAG – Appendix 3
Leslie Zaitz, of Keizertimes, requested files concerning a child who had died as a result of
an overdose. At the time of the child’s death she was a ward of the court and in DHS custody.
In requesting these files Zaitz provided an Authorization for Release of Information signed by
Green’s father. This request was denied based upon an analysis of ORS 419B.035 (Child Abuse
Reports and Investigations), of ORS 419A.255, and 419A.255(1)(2). Also, the request was
denied through an application of OAR 413-010-0040(1)(a)-(e) and OAR 413-010-0040(2).
(6.28.96). This PRO predates ORS 409.225 and HIPAA. Public Records Order, June 28, 1996,
Zaitz.
E. Attorney General Opinion
No. 7808 - October 3, 1979
First question presented: Is the Governor entitled to inspect confidentiality abuse records
maintained by the Children’s Services Division pursuant to ORS 418.740? Yes, but only to the
extent required for the Governor to determine that laws relating to child abuse are being
faithfully executed, and only for that purpose. Second question presented: Is the Attorney
General entitled to inspect such child abuse records in conjunction with defense of the Children’s
Services Division in a suit brought against the division arising out of its handling of a child abuse
case? Yes, to the extent required by the legal action
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DAG - Appendix 4
Administrative Services
Information Security Office
Request for Access to Records
For use by Department of Human Services (DHS) clients requesting access to their
own records.
Name (print):
ID number (case, prime numbers or SSN):
Record holder (office, district):
Date of birth:
Location of record (address):
Date of request:
Client’s mailing address:
Client’s phone number (optional):
Client’s email address (optional):
Submit this request to the office where services were last received.
Do not send this request to any other address.
Are you requesting:
To review the file
To receive copies
 DHS cannot give you access to psychotherapy notes.
 DHS cannot give you access to information that is no longer available.
 DHS may not be able to provide access to some records or information.
 If DHS denies all or a portion of your request, you have a right to request a review.
 You may be charged a fee for copying your records.
Please specify the type of record or information and the dates you are requesting:
Full legal signature of individual or authorized
personal representative:
Relationship to client:
Date:
Personal representative authentication:
DHS staff only:
Approved
If delayed we will act on your request by:
Reason for delay or denial:
(DHS representative signature)
See other side for client rights information
Denied
Delayed
(Date)
DHS 2093 (10/09)
DAP – APPENDIX 5.a
Authorization for Use & Disclosure of Information
This form is available in alternative formats including Braille, computer disk, and oral presentation.
Legal Last Name of Client/Applicant
First
MI
Other Names Used by Client/Applicant
Date of Birth
Case ID#
By signing this form, I authorize the following record holder to disclose the following specific confidential
information about me:
Section A
Release From ONE Record Holder – (Individual,
School, Employer, Agency, Medical or Other Provider)
Specific Information to be Disclosed
If the information contains any of the types of records or information listed below, additional laws relating to
use and disclosure may apply. I understand that this information will not be disclosed unless I place my initials
in the space next to the information:
HIV/AIDS: _________
Mental Health: _________
Alcohol/Drug diagnoses, treatment, referral: _________
Genetic Testing: _________
Section B
Release To (address required if mailed)
If releasing to a team, list members.
Expiration Date
or Event*
Purpose
* This authorization is valid for one year from the date of signing unless otherwise specified.
I can cancel this authorization at any time. The cancellation will not affect any information that was already
disclosed. I understand that state and federal law protects information about my case. I understand what this
agreement means and I approve of the disclosures listed. I am signing this authorization of my own free will.
I understand that the information used and disclosed as stated in this authorization may be subject to
re-disclosure and no longer protected under federal or state law. I also understand that federal or state law
prohibits re-disclosure of HIV/AIDS, mental health, and drug/alcohol diagnosis, treatment, vocational
rehabilitation records, or referral information, without specific authorization.
Full Legal Signature of Individual OR Authorized Personal Representative
Section C
Mutual
Exchange:
Yes / No
Name Of Staff Person (print)
Initiating Agency Name/Location
Full Legal Signature of Agency Staff Person Making Copies
Print Staff Person Name
Relationship to Client
Date
Date
This is a True Copy of the
Original
Authorization Document.
DHS 2099 (01/09)
Page 1 of 3
DAP – APPENDIX 5.a
Required Information for the Client
To provide or pay for health services: If the Department of Human Services (DHS) is acting as a provider of
your health care services or paying for those services under the Oregon Health Plan or Medicaid Program, you may
choose not to sign this form. That choice will not adversely affect your ability to receive health services, unless the
health care services are solely for the purpose of providing health information to someone else and the
authorization is necessary to make that disclosure. (Examples of this would be assessments, tests or evaluations.)
Your choice not to sign may affect payment for your services if this authorization is necessary for reimbursement
by private insurers or other non-governmental agencies.
This authorization for use and disclosure of information may also be necessary under the following situations:
ƒ To determine if you are eligible to enroll in some medical programs that pay for your health care
ƒ To determine if you qualify for another DHS program or service not acting as a health care provider
This is a Voluntary Form. DHS cannot condition the provision of treatment, payment, or enrollment in publicly
funded health care programs on signing this authorization, except as described above. However, you should be
given accurate information on how refusal to authorize the release of information may adversely affect eligibility
determination or coordination of services. If you decide not to sign, you may be referred to a single service that
may be able to help you and your family without an exchange of information.
Using This Form
1. Terms Used: Mutual exchange: A “yes” allows information to go back and forth between the record
holder and the people or programs listed on the authorization. Team: A number of individuals or agencies
working together regularly. The members of the team must be identified on this form.
2. Assistance: Whenever possible, a DHS staff person should fill out this form with you. Be sure you
understand the form before signing. Feel free to ask questions about the form and what it allows. You may
substitute a signature with making a mark or by asking an authorized person to sign on your behalf.
3. Guardianship/Custody: If the person signing this form is a personal representative, such as a guardian, a
copy of the legal documents that verify the representative’s authority to sign the authorization must be
attached to this form. Similarly, if an agency has custody, and their representative signs, their custody
authority must be attached to this form.
4. Cancel: If you later want to cancel this authorization, contact your DHS staff person. You can remove a
team member from the form. You will be asked to put the cancellation request in writing.
Exception: Federal regulations do not require that the cancellation be in writing for the Drug and Alcohol
Programs. No more information can be disclosed or requested after authorization is cancelled. DHS can
continue to use information obtained prior to cancellation.
5. Minors: If you are a minor, you may authorize the disclosure of mental health or substance abuse
information if you are age 14 or older; for the disclosure of any information about sexually transmitted
diseases or birth control regardless of your age; for the disclosure of general medical information if you are
age 15 or older.
See Required Information on Page 2 of This Form.
(Not Valid Without Page 2)
DHS 2099 (1/09)
DAP – APPENDIX 5.a
6. Special Attention: For information about HIV/AIDS, mental health, genetic testing or alcohol/drug abuse
treatment, the authorization must clearly identify the specific information that may be disclosed and the purpose.
Re-disclosure: Federal regulations (42 CFR Part 2) prohibit making any further disclosure of Alcohol and Drug
information; state law prohibits further disclosure of HIV/AIDS information (ORS 433.045, OAR 333-120270); and state law prohibits further disclosure of mental health, substance abuse treatment, vocational
rehabilitation and developmental disability treatment information from publicly funded programs (ORS
179.505, ORS 344.600) without specific written authorization.
See Required Information on Page 2 of This Form.
(Not Valid Without Page 2)
DHS 2099 (1/09)
DAP- Appendix 5.b
Instructions for Completing the Authorization
for Use and Disclosure of Information Form DHS 2099
PLEASE PRINT ALL INFORMATION
SECTION “A”
This section is meant for one record holder name. Each source of records requires a
Release
separate authorization form.
From
ƒ Record Holder name needs to be specific. “Medical Providers” in the Release From
box is not adequate.
ƒ This section can reference “DHS” or a specific program within DHS. Assist the
client to fully understand what it means to release from all of DHS. The client
should have the option to limit the release of information from one or more DHS
programs.
ƒ Include both pages when sending/faxing a signed Authorization to a Record Holder.
State law requires that the client receive some of the information on the second
page. The Record Holder will want to know that the client has received that
information.
Specific
ƒ Some examples of specific information are assessments, treatment plans, results of
Information
urinalysis, psychological report, financial information, and case plans.
to Disclose ƒ Do not indicate “entire record” unless it is necessary to accomplish the purpose.
(See section “B” below for definition of “Purpose”.)
Mutual
ƒ If the client agrees to mutual exchange, the exchange needs to stay within the
Exchange;
purpose and specific information stated on the form.
yes/no
ƒ Mutual Exchange creates the opportunity to ask clarifying questions about the
specific information identified on the form.
ƒ Mutual Exchange does not open all records for discussion between the record
holder and the record requester.
ƒ Only if Mutual Exchange is acknowledged with a “yes” can information flow both
ways.
STATEMENT
ƒ
If the information contains any of the
types of records or information listed
below, additional laws relating to use
and disclosure may apply etc.
ƒ
Explain to the client that there are very strict state
and/or federal confidentiality laws to protect these
sensitive records.
Even if the “Specific Information to be Disclosed”
section notes the sensitive records being requested,
the lines in this statement must be initialed.
SECTION“B”
ƒ
Release To
(address required if
mailed) If releasing
to team members,
list members
ƒ
ƒ
The client must be given the option to complete a separate form for each
partner or to refuse disclosure to a particular partner on the list.
Record holders may have their own procedures on mailing or faxing
requested records. When requesting that the records be faxed, also
include, whenever possible, the address for the records to be mailed.
This section can reference “DHS” or a specific program within DHS. Assist
the client to fully understand what it means to release to all of DHS. The
client should have the option to limit the release of information to one or
more DHS programs.
DHS 2099 I (1/09)
DAP- Appendix 5.b
SECTION“B”
ƒ
Purpose
Expiration Date or
Event*
ƒ
ƒ
ƒ
The stated purpose should support the work being done for and with the
client. It is not a generic permission for the use or disclosure for any and
all information.
This field must be completed with either an event or a date.
The authorization is valid for one year from the date of signing, unless
otherwise clearly stated.
Although using an “event” in this field is allowable, the record holder may
not know when or if the event has occurred.
SECTION “C”
ƒ
Full Signature OR
authorized Personal ƒ
Representative
ƒ
ƒ
Signature and
Printed Name of
Agency Staff
Person Providing
this Copy.
ƒ
ƒ
A client or authorized personal representative should never be asked to
sign a blank or incomplete authorization form.
Signature of both personal representative and the individual are not
required.
Definition of “Personal Representative” may vary between programs. If
unsure, check with your manager.
Agency staff signature certifies that this is a true copy of the original
Authorization document.
DO NOT SIGN THE ORIGINAL AUTHORIZATION. Make a copy, and
sign the copy before mailing or faxing.
When faxing or mailing, send both pages of the Authorization. The second
page includes information that is required by law. Healthcare and other
DHS partners need to know that the client has been fully informed.
INSTRUCTIONS FOR PAGE 2
Voluntary Signature ƒ
ƒ
ƒ
Cancellation
(Revocation)
ƒ
ƒ
ƒ
ƒ
ƒ
Minors
ƒ
Client signature is voluntary; therefore the client may decline to sign this
authorization form.
Declining to sign may impact the ability of DHS to coordinate client
services with health care professionals.
Without a signed Authorization, DHS may be unable to verify eligibility
requirements and may be unable to refer the client to other services.
Inform the client of the right to cancel (revoke) the Authorization.
Except for Drug and Alcohol Programs, the client is required to make the
cancellation request in writing.
Write the method and date of the cancellation on the Authorization form,
add the current date if different from the cancellation date, initial the
cancellation entry, and place the Authorization form in the client file.
The client may cancel (revoke) disclosure to one or more team members
listed on the Authorization.
If the Authorization(s) has been placed in the ORCA system, make sure
the cancellation is noted in that system as well as in the paper file.
A Program or subject-specific state laws may impact decisions about
Authorization forms signed by minors. Check with your manager.
DHS 2099 I (1/09)
DAP- Appendix 5.b
INSTRUCTIONS FOR PAGE 2
Re-disclosure
ƒ
ƒ
X
Re-disclosure is the disclosure of information to a person, DHS program,
DHS subcontracted entity, or other entity beyond what is originally
authorized. Literally, this means disclosing the information for a new or
different reason, to someone other than originally intended.
Federal and state regulations prohibit making any further disclosure of
Alcohol/Drug and HIV/AIDS information.
Both Pages:
o This form is not valid without Page two.
o Include both pages when sending/faxing a signed Authorization to a Record Holder. State law
requires that the client receive some of the information on the second page. The Record
Holder will want to know that the client has been made aware of that information.
X
Form Completion
o The Authorization form can be filled out electronically and printed for client signature
o After being completed and signed, Authorization forms can be stored in the ORCA
database, as long as the client-signed form is maintained in the paper file. If needed,
more than one Authorization form for an individual client can be stored in this database.
o If completed Authorization forms are stored in a database, make sure you have a
process in place for revocation. If a signed Authorization is later revoked (cancelled)
that revocation must be noted in the database as well as in the paper file.
o The Authorization form can be pre-printed with standard multidisciplinary team
members, as long as the client is given the option to omit one or more team members.
o Do not use labels on the Authorization form.
o When completed properly, the form is able to stand alone to process a requested
disclosure.
X
Trouble Shooting: If the Authorization form you send out has been completed, signed, and sent
properly, and a record holder refuses to accept it, call the Privacy Program at 503-945-5780.
Common Mistakes Made when Completing an Authorization Form
1. Writing illegibly. If your handwriting is difficult to read, print or type the information onto the form.
2. Requesting that records be sent to you but not providing a mailing address or fax number to a
Record Holder.
3. Mailing or faxing only one page of the Authorization form. The Authorization form is two pages
long, and both pages must be included when mailed or faxed.
4. Asking the client to sign an Authorization form that has not been completed. Clients have the right
to be fully informed about what they are signing and what that will mean to them.
5. Being too general in the “Specific Information to be Disclosed” or the “Purpose” section.
6. Not including the Date of Birth in order to more easily identify the individual.
7. Signing the original Authorization to certify that it is a true copy, rather than signing a copy.
8. Having someone without sufficient authority sign the Authorization on behalf of the client.
DHS 2099 I (1/09)
DAP - APPENDIX 6
Definitions
Disclosure: Information or documents provided to other persons:
• If required or permitted by state law, federal law, federal regulations or state
administrative rules.
• Pursuant to a court order.
• As required by a subpoena. (Subpoena Duces Tecum)
• In response to a client/ public records request.
• As part of discovery.
• In order to facilitate the provision of services to children, parents or families.
• In other circumstances where DHS is required or authorized to
release information or documents.
Discovery: Ongoing statutory obligation to disclose specific types of information
and documents to all parties in a juvenile court proceeding within mandated time
lines.
DAP - Appendix 7.a
Department of Human Services
CHILDREN, ADULTS & FAMILIES
ADMINISTRATIVE SUPPORT INDEX
ISSUED BY: Office of Safety and Permanency
for Children
NUMBER: III-F.1.6
OAR: 413-350-0000 thru 0090
SECTION: F. Information
Management
SUBSECTION: 1. Administrative
Information management
FINAL: 11-01-07
SUBJECT: 6. Inspection and Copying of Records – OAR
REFERENCES:
ORS 192.310, 192.420, 192.430, 192.440, 192.496, 192.501, 192.502
ORS 409.010
ORS 418.005
ORS 419B.035
OAR 407-003-0010
OAR 407-005-0010
407-005-0010
American Disabilities Act
413-350-0000
Purpose
The purpose of these rules (OAR 413-350-0000 to 413-350-0090) is to prescribe procedures
for viewing and copying public records held by the Child Welfare program and describe the
process for charging fees when the Department makes the public records available.
Stat. Auth.: ORS 409.050, 418.005
Stats. Implemented: ORS 192.420, 192.430, 192.440, 409.010, 418.005, 419B.035
413-350-0010
Definitions
The following definitions apply to OAR 413-350-0000 to 413-350-0090:
(1)
"Custodian" means the Child Welfare program manager or designee of the program
manager responsible for the service location at which the record is located.
(2)
"Public record" includes any writing containing information relating to the conduct of
the public's business, including but not limited to records prepared, owned, used, or
retained by a public body regardless of physical form or characteristics.
III-F.1.6/Final/11-01-07
413-350-0000 thru 0090
DAP - Appendix 7.a
DHS Child Welfare Policy III-F.1.6
Final: 11-01-07
Inspection and Copying of Records – OAR
(3)
"Writing" means the definition of "writing" in the version of OAR 407-003-0000 that is
current when the public record request is made.
Stat. Auth.: ORS 409.050, 418.005
Stats. Implemented: ORS 192.420, 192.430, 192.440, 409.010, 418.005, 419B.035
413-350-0020
Access
Any person has a right to inspect any public record held by the Child Welfare Program to the
extent provided by these rules (OAR 413-050-0000 to 413-050-0090).
Stat. Auth.: ORS 409.050, 418.005
Stats. Implemented: ORS 192.420, 192.430, 192.440, 409.010, 418.005, 419B.035
413-350-0030
Access to Electronic Public Records
When access is permitted under these rules (OAR 413-350-0000 to 413-350-0090):
(1)
If the public record is maintained in electronic form, Child Welfare shall provide copies
of the electronic public record, in the form requested, if available.
(2)
If the public record is not available and maintained in the form requested, Child
Welfare shall provide copies of the public record in the form in which it is maintained.
Stat. Auth.: ORS 409.050, 418.005
Stats. Implemented: ORS 192.420, 192.430, 192.440, 409.010, 418.005, 419B.035
413-350-0040
Exemptions From Disclosure
(1)
Per ORS 192.496, the following records are exempt from disclosure:
(a)
Records less than 75 years old that contain information about the physical or
mental health or psychiatric care or treatment of a living individual, if the public
disclosure thereof would constitute an unreasonable invasion of privacy. The
party seeking disclosure shall have the burden of showing by clear and
convincing evidence that the public interest requires disclosure in the particular
instance and that public disclosure would not constitute an unreasonable
invasion of privacy.
III-F.1.6/Final/11-01-07
413-350-0000 thru 0090
DAP - Appendix 7.a
DHS Child Welfare Policy III-F.1.6
Final: 11-01-07
Inspection and Copying of Records – OAR
(2)
(b)
Records less than 75 years old that were sealed in compliance with statute or
by court order. Such records may be disclosed upon order of a court of
competent jurisdiction or as otherwise provided by law.
(c)
Records of a person who is or has been in the custody or under the lawful
supervision of a state agency, a court or a unit of local government, are exempt
from disclosure for a period of 25 years after termination of such custody or
supervision to the extent that disclosure thereof would interfere with the
rehabilitation of the person if the public interest in confidentiality clearly
outweighs the public interest in disclosure. Nothing in this subsection, however,
shall be construed as prohibiting disclosure of the fact that a person is in
custody.
(d)
Student records required by state or federal law to be exempt from disclosure.
Per ORS 192.501, the following public records are exempt from disclosure:
(a)
Records of a public body pertaining to litigation to which the public body is a
party if the complaint has been filed, or if the complaint has not been filed, if the
public body shows that such litigation is reasonably likely to occur. This
exemption does not apply to litigation that has been concluded, and nothing in
this subsection shall limit any right or opportunity granted by discovery or
disposition statutes to a party to litigation or potential litigation.
(b)
Investigatory information compiled for criminal law purposes. The record of an
arrest or the report of a crime shall be disclosed unless and only for so long as
there is a clear need to delay disclosure in the course of a specific investigation,
including the need to protect the complaining party or the victim. Nothing in this
subsection shall limit any right constitutionally guaranteed, or granted by
statute, to disclosure or discovery in criminal cases. For purposes of this
subsection, the record of an arrest or the report of a crime includes, but is not
limited to:
(A)
The arrested person's name, age, residence, employment, marital status
and similar biographical information;
(B)
The offense with which the arrested person is charged;
(C)
The conditions of release pursuant to ORS 135.230 to 135.290;
(D)
The identity and biographical information concerning both complaining
party and victim;
(E)
The identity of the investigating and arresting agency and the length of
the investigation;
III-F.1.6/Final/11-01-07
413-350-0000 thru 0090
DAP - Appendix 7.a
DHS Child Welfare Policy III-F.1.6
Final: 11-01-07
Inspection and Copying of Records – OAR
(F)
The circumstances of arrest, including time, place, resistance, pursuit
and weapons used; and
(G)
Such information as may be necessary to enlist public assistance in
apprehending fugitives from justice.
(c)
Test questions, scoring keys, and other data used to administer a licensing
examination, employment, academic or other examination or testing procedure
before the examination is given and if the examination is to be used again.
Records establishing procedures for and instructing persons administering,
grading or evaluating an examination or testing procedure are included in this
exemption, to the extent that disclosure would create a risk that the result might
be affected.
(d)
Investigatory information relating to any complaint filed under ORS 659A.820 or
659A.825, until such time as the complaint is resolved under ORS 659A.835, or
a final order is issued under ORS 659A.850.
(e)
Investigatory information relating to any complaint or charge filed under ORS
243.676 and 663.180.
(f)
A personnel discipline action, or materials or documents supporting that action.
(g)
Computer programs developed or purchased by or for any public body for its
own use. As used in this subsection, "computer program" means a series of
instructions or statements which permit the functioning of a computer system in
a manner designed to provide storage, retrieval, and manipulation of data from
such computer system, and any associated documentation and source material
that explain how to operate the computer program. "Computer program" does
not include:
(A)
The original data, including but not limited to, numbers, text, voice,
graphics, and images;
(B)
Analyses, compilations, and other manipulated forms of the original data
produced by use of the program; or
(C)
The mathematical and statistical formulas that would be used if the
manipulated forms of the original data were to be produced manually.
(h)
Data and information provided by participants to mediation under ORS 36.256.
(i)
Investigatory information relating to any complaint or charge filed under ORS
chapter 654, until a final administrative determination is made or, if a citation is
issued, until an employer receives notice of any citation.
III-F.1.6/Final/11-01-07
413-350-0000 thru 0090
DAP - Appendix 7.a
DHS Child Welfare Policy III-F.1.6
Final: 11-01-07
Inspection and Copying of Records – OAR
(3)
Per ORS 192.502, the following records are exempt from disclosure:
(a)
Communications within a public body or between public bodies of an advisory
nature to the extent that they cover other than purely factual materials and are
preliminary to any final agency determination of policy or action. This exemption
shall not apply unless the public body shows that in the particular instance the
public interest in encouraging frank communication between officials and
employees of public bodies clearly outweighs the public interest in disclosure.
(b)
Information of a personal nature such as, but not limited to, that kept in a
personal, medical or similar file, if the public disclosure thereof would constitute
an unreasonable invasion of privacy, unless the public interest by clear and
convincing evidence requires disclosure in the particular instance. The party
seeking disclosure shall have the burden of showing that public disclosure
would not constitute an unreasonable invasion of privacy.
(c)
Information submitted to a public body in confidence and not otherwise required
by law to be submitted, where such information should reasonably be
considered confidential, the public body has obliged itself in good faith not to
disclose the information, and when the public interest would suffer by the
disclosure.
(d)
Information or records of the Department of Corrections, including the State
Board of Parole and Post-Prison Supervision, to the extent that disclosure
would interfere with the rehabilitation of a person in custody of the Department
of Corrections or substantially prejudice or prevent the carrying out of the
functions of the Department of Corrections, if the public interest in confidentiality
clearly outweighs the public interest in disclosure.
(e)
Any public records or information the disclosure of which is prohibited by federal
law or regulations.
(f)
Public records or information the disclosure of which is prohibited or restricted
or otherwise made confidential or privileged under Oregon law.
(g)
Public records or information described in this rule, furnished by the public body
originally compiling, preparing, or receiving them to any other public officer or
public body in connection with performance of the duties of the recipient, if the
considerations originally giving rise to the confidential or exempt nature of the
public records or information remain applicable.
(h)
Employee and retiree address, telephone number, and other non-financial
membership records and employee financial records maintained by the Public
Employees' Retirement System pursuant to ORS chapters 238 and 238A.
Stat. Auth.: ORS 409.050, 418.005
III-F.1.6/Final/11-01-07
413-350-0000 thru 0090
DAP - Appendix 7.a
DHS Child Welfare Policy III-F.1.6
Final: 11-01-07
Inspection and Copying of Records – OAR
Stats. Implemented: ORS 192.496, 192.501, 192.502, 409.010, 418.005, 419B.035
413-350-0050
Supervisory Review
Prior to any person viewing or copying a public record held by Child Welfare, the supervisor
or person designated by the branch must determine which material in the record is exempt
from disclosure. If the supervisor or person designated by the branch has any doubt as to
whether information contained in the record is exempt from disclosure, the supervisor must
consult with designated or Central office staff.
Stat. Auth.: ORS 409.050, 418.005
Stats. Implemented: ORS 192.496, 192.501, 192.502, 409.010, 418.005, 419B.035
413-350-0060
Time Frame
Child Welfare provides an opportunity for the inspection and copying of records when access
and copying is otherwise permitted under these rules (OAR 413-350-0000 to 413-350-0090).
To protect its records and prevent interference with the regularly scheduled duties of its staff,
Child Welfare and the person requesting to inspect the record shall establish a reasonable
time at which the records may be inspected. The time frame for inspection shall normally be
within ten working days. When this time frame is not possible, the custodian or person
designated by the branch will discuss the reasons with the requester and provide an
expected date for inspecting the record. If copies are requested, Child Welfare shall make
them within a reasonable time period, not to exceed five working days from the date of the
request for the specific material, and shall mail the material to the requester.
Stat. Auth.: ORS 409.050, 418.005
Stats. Implemented: ORS 192.420, 192.430, 192.440, 409.010, 418.005, 419B.035
413-350-0070
Viewing and Copying Procedures
(1)
When Child Welfare is required or permitted to make records available pursuant to
ORS 419B.035, the identities of the abuse reporters and victims will be deleted from
the material provided for examination. Prior to allowing viewing and copying of the
public record, Child Welfare shall separate any material that is exempt from disclosure
from non-exempt material, and make the non-exempt material available for
examination.
(2)
Names, addresses, and other identifying information of mandatory abuse reporters, as
well as voluntary abuse reporters and persons making complaints who requested
III-F.1.6/Final/11-01-07
413-350-0000 thru 0090
DAP - Appendix 7.a
DHS Child Welfare Policy III-F.1.6
Final: 11-01-07
Inspection and Copying of Records – OAR
confidentiality, must be covered to protect their identity. The names of alleged
perpetrators if the perpetrators are juveniles in Child Welfare custody and the names
of victims must also be covered.
(3)
Child Welfare shall provide the person requesting examination a place to review the
record. A person designated by Child Welfare shall sit with the person reviewing the
record in order to assure it is not altered in any way.
(4)
The person viewing the record may designate pages to be copied, or may request
copies of specific information contained in the record. Only Child Welfare staff may
copy the designated material.
Stat. Auth.: ORS 409.050, 418.005
Stats. Implemented: ORS 192.420, 192.430, 192.440, 409.010, 418.005, 419B.035
413-350-0080
Charges
(1)
Child Welfare shall charge for the cost of making the record available to the extent
permitted by OAR 407-003-0010.
(2)
Child Welfare shall inform the requester of estimated charges as provided by OAR
407-003-0010(5).
(3)
The requester may ask Child Welfare for a waiver of the charges for the cost of
making the record available. Child Welfare may reduce or waive fees as provided by
OAR 407-003-0010.
(4)
If Child Welfare denies the initial request for a waiver of all or part of the actual cost of
providing the record, the requester may proceed as provided by OAR 407-0030010(7).
Stat. Auth.: ORS 192.430, 409.050, 418.005
Stats. Implemented: ORS 192.430, 192.440, 409.010, 418.005
413-350-0090
Availability of Alternative Print Format
Upon request of a person with a disability for public records otherwise available to the
requester under these rules (OAR 413-350-0000 to 413-350-0090), Child Welfare will consult
with that individual about making the requested records available in alternative print format at
no additional cost to the requester and follow OAR 407-005-0010(8).
Stat. Auth.: ORS 409.050, 418.005
III-F.1.6/Final/11-01-07
-350-0000 thru 0090
DAP - Appendix 7.a
DHS Child Welfare Policy III-F.1.6
Final: 11-01-07
Inspection and Copying of Records – OAR
Stats. Implemented: 409.010, 418.005
III-F.1.6/Final/11-01-07
413-350-0000 thru 0090
DAP - Appendix 7.b
Director’s Office
Policy Title:
Public Record Request and Fee
Policy Number:
DHS-010-010
Version:
Approved By: Deputy Director of Operations
1.0
Effective Date: 06/09/2008
Date Approved
Overview
Description: This policy clarifies the process to make a public records request for records
held by the Oregon Department of Human Services (DHS). Additionally, the policy and its
associate procedures specify the costs that may be charged to prepare the records for
distribution and the process for requesting the reduction or waiver of fees.
The State of Oregon and DHS seek to make public records available to the public for review,
except those records that are specifically exempted from disclosure by federal or state statute.
These exemptions generally are intended to prevent invasion of privacy and the use of public
records for personal, commercial or political gain; and to meet federal and state confidentiality
requirements. For more information about exemptions see Oregon Revised Statute (ORS)
192.410 to 192.505.
Clarification: This policy and supporting Oregon Administrative Rule (OAR) do not supersede
any existing specific request fees, such as request for birth certificates.
Purpose/Rationale: The purpose of this policy is to ensure that all requests for public
records are handled in a manner that is consistent, efficient, timely and in compliance with
state and federal public records law. Charging for the reasonable costs to prepare the records
for distribution enables DHS to maintain fiscal integrity.
Applicability: This policy applies to all DHS staff including employees, volunteers, trainees
and interns and any entity requesting records.
Failure to Comply: Failure to comply with this policy may result in disciplinary action, up to
and including dismissal from state service.
Policy
1. Public records will be available as appropriate.
a. Public records shall be made available upon request, except those records which are
exempt from disclosure.
A. Records that are exempt from disclosure are defined in ORS Chapter 192 and
OAR Chapter 407 Division 003.
DAP - Appendix 7.b
B. Exemptions are generally intended to prevent invasions of privacy and use of public
records for personal, commercial or political gain. Exempted information includes,
but is not limited to, social security information, home addresses, employment
applications, medical records, certain investigative records, etc.
2. A complete request for records.
a. A complete request for records includes:
A. A description of the information requested, as specific as possible, including the type
of records, subject matter, approximate dates the records were created, and the
names of the persons involved.
B. Contact information for the requestor: name, address and telephone number of the
person or organization requesting the public records.
C. The desired format for the records to be received (hard paper copy, electronic copy
by e-mail [PDF or other format], electronic copy on disc, CD, or other media) and
the number of copies requested.
D. The desired date by which the records are requested to be delivered.
3. DHS coordination of public records requests.
a. The Office of Communications (OC), as part of the Administrative Services Division, is
responsible for coordinating external communications across the agency and will be
responsible for coordinating all public records requests. OC has a team of information
officers assigned to represent each of the DHS divisions. Each officer oversees and
coordinates the external communication activities for their respective division. This
coordination is extended to include the coordination of responses to public records
requests to help ensure that offices and programs handle requests consistently and
appropriately.
A. Processing and compiling a public records request.
i. The program staff responsible for maintaining the requested information will
compile the information, but will work with the appropriate OC representative to
ensure the response process aligns with DHS policy as well as all federal and
state laws and rules regarding public and private information.
ii. Information requests involving a DHS employee, intern or volunteer will be
processed in coordination with the DHS Human Resources Office.
iii. Some information requests may require a written release by the involved client,
parent or guardian of a client or other authorized individual as required by
applicable federal and state law before being released. The Requestor will be
notified when this situation arises.
B. Tracking public records requests.
i. OC will maintain a database of requests to enable DHS to track all requests for
public records in one central location.
4. DHS will acknowledge requests and notify the Requestor of the process.
a. DHS shall provide the Requestor notice of receiving the record request and an estimate
of costs to prepare the records no later than 5 business days from receipt of the
request.
A. The notice will include acknowledgment of the request, a copy of this policy, a copy
of the fee schedule, an estimate of the expected cost of meeting the request or a
date when an estimate will be made available, the format in which the information
will be provided, delivery information or information about where the records can be
DAP - Appendix 7.b
inspected if copies cannot be delivered, the expected date of delivery and
information about how payment for the request can be made to DHS.
i. To protect the security of its systems, DHS will not permit the transmittal of
records on a disk or other electronic device that must be connected to its
systems, unless that disk or device is procured and provided by DHS.
B. Copies of records shall be provided at a cost reasonably calculated to reimburse DHS
for the actual costs incurred in making the records available.
C. If the estimated fee exceeds $25, the Requestor must provide written authorization
in order for DHS to proceed.
5. DHS costs to prepare records.
a. DHS will charge a fee for providing copies of records in accordance with the established
fee schedule (DHS-010-010-02).
A. Fees are calculated to reasonably reimburse DHS for the costs incurred in making
the records available.
i. Activities involved in preparing records for distribution include, but are not
limited to: locating, compiling, summarizing, printing, redacting, copying and
distributing the information, office supplies to conduct each activity and taking
any other steps reasonably required to make the information available.
b. DHS will reduce or waive fees in accordance with ORS 192.440(4) and OAR 407-0030010(6).
A. DHS may furnish copies of public records without charge or at a reduced fee, if
DHS determines the reduction or waiver is in the public interest pursuant to
ORS 192.440(4).
B. All waivers must be approved in advance by a DHS deputy director, a division
assistant director, or an authorized delegate of either as authorized with a signed
delegation of authority for said delegate.
C. Factors that may be considered when determining whether to reduce or waive fees:
i. The overall cost to be incurred by DHS is negligible;
ii. Supplying the requested records or documents is within the normal scope of
DHS’ normal business;
iii. Requiring payment would cause extreme or undue financial hardship upon the
requestor; or
iv. Discovery requests are being made as part of pending administrative, judicial, or
arbitration proceeding.
6. Forms and method of payment.
a. The Requestor can make arrangements to make a payment at the delivery of the
records or be billed for the charges (DHS Form AR 3300).
A. DHS is prepared to accept checks, money orders or visa payments.
Procedures that apply
DHS-010-010-01: Public Record Request, Receipt, Payment and Delivery Procedure
DHS-010-010-02: Public Record Request Fee Structure Procedure
DHS-010-010-03: Public Record Request Fee Reduction or Waiver Procedure
DAP - Appendix 7.b
Forms that apply
DHS 5107: Request for Disclosure of Public Records Form - PDF or Word
DHS 5106: Receipt of Public Records Request Form - PDF or Word
DHS 5108: Request for Reduction or Waiver of Public Record Request Fee - PDF or Word
DHS 0286: Signature Authorization – PDF or Word
AR 3300: Account Receiveable/Billing Request - PDF or Word
References
ORS 192.005 to 192.170: Public Records Policy
OAR 407-003-0000: DHS Administrative Services Division/Director’s Office Public Records Fees
Definitions
Public Record: Any and all information held by DHS, not protected by federal or state
confidentiality rules, laws or statutes.
Contacts
Name: Patty Wentz
Phone: (503) 947-5361 Email: [email protected]
Policy History
•
Version 1.0:
- 06/09/2008 – Initial Release
DAP - Appendix 7.c
Administrative Services
Policy Title:
Client Privacy Rights
Policy Number:
DHS-100-002
Version:
2.0
Effective Date: Upon Approval
Signature on File in the office of the Chief Administrative Officer
Approved:
Jeremy Emerson, Interim CAO
Date: July 20, 2009
Purpose:
This policy describes the privacy rights of Department clients to:
Request or receive the Department’s Notice of Privacy Practices (section 1); request
restrictions on the use and disclosure of information (section 2); request information by
alternative means or in alternative locations (section 3); request access to their information
(section 4); request amendments to their information (section 5); request an accounting of
disclosures of protected health information (section 6); and file complaints about the
disclosure of their information (section 7).
Policy:
1. Department Notice of Privacy Practices. Clients have the right to receive
adequate notice from the Department of privacy practices.
a. The Department will make available to each client a notice of Department privacy
practices that describes the responsibility of the Department to maintain the privacy of
protected health information and includes a description that clearly informs the client of
the types of uses and disclosures the Department is permitted or required to make;
b. The Department will provide all clients in direct care settings a notice of Department
privacy practices and will request the client’s signature on an acknowledgement of
receipt form.
c. Whenever there is a material change in Department privacy practices, the Department
will revise the Notice of Privacy Practices and make the revised notice available to all
clients. Any such changes to Department privacy practices will apply to information the
Department already has as well as to any information the Department receives in the
future;
d. A copy of the Notice of Privacy Practices will be posted for public viewing at each
Department worksite and on the Department website; and
e. The Department will give a paper copy of the Department Notice of Privacy Practices to
any person upon request.
DAP - Appendix 7.c
2. Rights of clients to request restrictions on the use and disclosure of their
information.
A client may ask that their information not be used by DHS or that their information not be
given to certain people who would otherwise have access to the information.
Example #1 -- a client has a dispute with a caseworker and does not want the caseworker
to have any access to or use of information about the client. The client may submit a
request for restriction of use or disclosure of their information being provided to the
caseworker.
Example #2 – a client may request that DHS never disclose their information (or certain
sensitive information) to a particular family member or person in the household that is
normally involved in their case.
a. All requests for restrictions will be made by having the client complete a DHS 2095,
“Request for Restriction of Use and Disclosures.”
A. If a restriction is granted, it is binding on all other DHS staff and its business
associates. A decision to agree to a restriction should be approved by a supervisor
and steps should be taken to tell all other potential DHS staff and business
associates about the restriction, unless disclosure of the existence of the restriction
would violate the restriction itself – including clearly marking the file and making a
record in any electronic file associated with the restriction.
b. The Department is not required to agree to a restriction requested by the client. The
Department may deny or implement a less stringent restriction request.
A. The Department will not agree to restrict uses or disclosures of information under
the following conditions if the restriction would adversely affect the quality of the
client’s care or services:
In Example #1 – DHS is not required to limit access by caseworkers who are
involved in decision-making in a case.
i. If the restriction that would limit or prevent the Department from making or
obtaining payment for services;
In Example #2 – If the client has other medical coverage that is primary, DHS can
decline to agree to a restriction that would keep DHS from obtaining payment for
covered services.
ii. If the restriction would adversely affect the ability to administer Department
programs and services;
B. If the client needs emergency treatment and the restricted protected information is
needed to provide such treatment, the Department may use or disclose the
restricted protected information to a provider, for the limited purpose of providing
treatment. However, once the emergency situation subsides the Department will
DAP - Appendix 7.c
ask the provider not to redisclose the Information;
C. For information about substance abuse treatment (covered by 42 CFR part 2) or
vocational rehabilitation (covered by 34 CFR 361.38), the Department will honor
requests for restriction to limit sharing the information with another Department
program.
c. The Department will document the client’s request, and the reasons for granting or
denying the request in the client’s hard copy or electronic Department case record file.
The client will be informed about the Department’s decision.
d. Prior to any use or disclosure of client information, Department staff must confirm that
the particular use or disclosure has not been granted a restriction by reviewing the
client’s case file.
e. The Department may terminate its agreement of a restriction in each of the following
situations:
A. The client agrees to or requests termination of the restriction in writing.
B. The client orally agrees to or requests termination of the restriction. The
Department will document the oral agreement or request in the client’s Department
case record file.
C. The Department informs the client in writing that the Department is terminating its
agreement to the restriction. Information created or received while the restriction
was in effect shall remain subject to the restriction.
3. Rights of clients to request to receive information from the Department by
alternate means or at alternate locations.
This right involves how the Department communicates with the client.
Example #1 – A client may request alternate means or location for communications
because of a risk of domestic violence.
Example #2 – A client of the Department’s services, programs or activities may request to
receive mail or telephone communications in a manner that does not disclose the client as
a participant of the program. For example, a client of the Family Planning Expansion
Program may request that information not be sent to their home and that the program not
call their home.
a. Clients have the right to request to receive information from the Department by specific
means, such as mail, e-mail, fax or telephone, or at alternate locations.
A. If requesting an alternate means or location the client must be specific about the
request.
B. Requests may be made orally or in writing.
DAP - Appendix 7.c
C. If a client makes a request orally, the Department will document the request and
ask for the client’s signature. (DHS 2101, “Special Handling for Confidential
Communications)
D. If a client makes a request by telephone or electronically, the Department will
document the request and verify the identity of the requestor.
E. The client is not required to explain the basis for the request.
F. The Department will notify the client of its acceptance of the request, in a manner
that is consistent with the alternate means of communication that was granted.
b. The Department must accommodate reasonable requests by clients to receive
communications by alternate means, such as by mail, e-mail, fax, telephone or
alternate location; and
c. The Department shall update all applicable systems and associate systems with the
requested method of communication.
d. Prior to any information being sent to the client, Department staff must confirm if the
client has requested an alternate location or by alternate means, and if the Department
has granted that request.
e. The Department may terminate its agreement to an alternate location or method of
communication if:
A. The client agrees to or requests termination of the alternate location or method of
communication in writing or orally. The Department will document the oral
agreement or request in the client’s Department case record file.
B. The Department informs the client that the Department is terminating its agreement
to the alternate location or method of communication because the alternate location
or method of communication is not effective. The Department may terminate its
agreement to communicate at the alternate location or by the alternate means if:
i. The Department is unable to contact the client at the location or in the manner
requested; or
ii. If the client fails to respond to payment requests if applicable.
f. The Department will comply with the Address Confidentiality Program ORS 192.820192.868, upon request by a program participant under ORS 192.836.
4. Rights of clients to access their information.
a. Clients have the right to access, inspect, and obtain a copy of information on their own
cases that is maintained in a designated record set. The designated record set consists
of information about the client maintained in Department files or records used, in whole
or in part, by the Department to make decisions about the client, consistent with
federal law and the Oregon Public Records Law.
DAP - Appendix 7.c
b. Clients may request to access, inspect and obtain information about themselves or
information that the Department uses in whole or part to make decisions about them,
unless an access restriction is authorized by law or policy.
c. Requests for access may be made having the client complete a DHS 2093, “Request
for Access to Records.”
d. If the Department maintains information about the client in a record that includes
information about other people, the client is only authorized to see information about
him or herself. If the information is about both the client and another person, the
client can see the information that is about him or herself only. Department must take
steps to ensure the information about other people is protected.
e. If a person identified in the file is a minor child of the client, and the client is authorized
under Oregon law to have access to the minor’s information or to act on behalf of the
minor in making decisions about the minor’s care, the client may obtain information
about the minor.
f. If the person requesting information is recognized under Oregon law as a guardian or
legal custodian of the client and is authorized by Oregon law to have access to the
client’s information or to act on behalf of the client for making decisions about the
client’s services or care, the Department will release information to the requestor.
g. Upon presentation of the order of appointment by the Court Appointed Special
Advocate (CASA), any agency, hospital, school organization, division, office or
department of the state, doctor, nurse, or other health care provider, psychiatrist,
police department or mental health clinic shall permit the CASA to inspect and copy any
records relating to the child or ward involved in the case, without the consent of the
child, ward or parents as defined in ORS 419A.170.
h. Persons acting under the authority of the system in ORS 192.517 (1), to protect and
advocate the rights of individuals with developmental disabilities under part C of the
Developmental Disabilities Assistance and Bill of Rights Act (42 U.S.C. 6041 et seq.) and
the rights of individuals with mental illness under the Protection and Advocacy for
Individuals with Mental Illness Act (42 U.S.C. 10801 et seq.), shall have access to all
records, as defined in ORS 192.515, as provided in ORS 192.517.
i. In the following limited circumstances, the Department may deny clients or their
representative’s access to the client’s own health information:
A. Psychotherapy notes. This is limited to the notes maintained by a mental health
professional that are not kept in the official file.
B. Information compiled for use in civil, criminal, or administrative proceedings.
This exception usually refers to the Department staff’s notes and materials that
are created or developed in connection with the legal proceeding, rather than the
case file; however, if there are legal proceedings in which the Department of
Justice is representing the Department, consult with the DOJ attorney before
providing information to the client or their representative;
DAP - Appendix 7.c
C. Information that is subject to the federal Clinical Labs Improvement
Amendments of 1988, or exempt pursuant to 42 CFR 493.3(a)(2). This means
that rarely can a lab directly give lab results directly to the patient, but must give
the results to the health care professional who ordered the test. The health care
professional then provides the lab result to the patient.
D. Documents protected by attorney-client privilege or attorney work-product.
These documents will have the name of the attorney on it, have been marked as
attorney-client privileged, is part of a file that is marked as attorney-client
privileged, or the document contains information that is identifiable as legal
advice intended for confidential use by the Department;
E. Information where release to the client is prohibited by State or Federal Laws.
There are very few instances where the client’s own information cannot be
released to them, except as described in paragraphs A-G of this section.
Examples may include national security matters. These rare situations should be
discussed with the DHS Privacy Officer.
F. Information that, in good faith, the Department believes can cause harm to the
client, participant or to any other person;
G. Information obtained under a promise of confidentiality from someone other
than a health care provider to the extent that access would reveal the source of
the information.
j. Review of denial of access must be provided upon client’s request.
k. If the Department denies access under subsection 4h., the client has the right to have
the decision reviewed by a licensed health care professional (for health information) or
other designated staff (for other information) not directly involved in making the
original denial decision. The Department will then proceed based on the decision from
this review
A. The Department must promptly refer a request for review to the designated
reviewer. [See subsection 4.l. for timelines].
B. The reviewer must determine, within the 30-60 calendar day time limit noted in
C.1.B, whether or not to approve or deny the client’s request for access, in
accordance with this policy.
C. The Department must promptly notify the client in writing of the reviewer’s
determination; and take action to carry out the reviewer’s determination.
l. The Department must act on a client’s request for access no later than 30 calendar
days after receiving the request, except in the case of written accounts under ORS
179.505 which must be disclosed within five (5) calendar day.
A. In cases where the information is not maintained or accessible to the
Department, and does not fall under ORS 179.505, the Department must act on
the client’s request no later than 60 calendar day after receiving the request.
DAP - Appendix 7.c
B. If the Department is unable to act within these 30-calendar day or 60 calendar
day limits, the Department may extend this limitation by up to an additional 30
calendar day, subject to the following:
i. The Department must notify the client in writing of the reasons for the delay
and the date by which the Department will act on the request.
ii. The Department will use only one such 30-calendar day extension to act on a
request for access.
m. If the Department grants the client’s request, in whole or in part, the Department
must inform the client of the access decision and provide the requested access.
A. The Department must provide the requested information in a form or format
requested by the client, if readily producible in that form or format. If not readily
producible, the Department will provide the information in a readable hard-copy
format or such other format as agreed to by the Department and the client. The
Department need only provide the requested information once.
B. If the requested information is maintained with an entity other than DHS, the
Department will inform the client of where to request access.
C. The Department may provide the client with a summary of the requested
information, in lieu of providing access, or may provide an explanation of the
information if access had been provided, if:
i. The client agrees in advance; and
ii. The client agrees in advance to any fees the Department may impose, per
4.m.E, below.
D. The Department must arrange with the client for providing the requested access
in a time and place convenient for the client and the Department. This may
include mailing the information to the client if the client so requests or agrees.
E. Fees: A client, or personal representative, who requests a copy of their
information, a written summary, or explanation of such information is responsible
for paying a reasonable, cost-based fee, (unless the fee is waived pursuant to
Department policy) The costs are limited to covering the following:
i. Copying the requested information, including the costs of supplies and of the
labor of copying;
ii. Postage, when the client has requested or agreed to having the information
mailed; and
iii. Preparing an explanation or summary of the requested information, if agreed
to in advance by the client, per 3.m.C., above.
n. If the Department denies access, in whole or in part, to the requested information, the
Department must:
DAP - Appendix 7.c
A. Offer the client access to any other requested client information, after excluding
the information to which access is denied;
B. Provide the client with a timely written denial. The denial must:
i. Be sent or provided within the time limits specified in subsection 4.k., above;
ii. State the basis for the denial;
iii. If the reason for the denial is due to danger to the client or another, explain
the client’s review rights as specified in subsection 4.j. above, including an
explanation of how the client may exercise these rights;
iv. Provide a description of how the client may file a complaint with the
Department, and if the information denied is protected health information,
with the United States Department of Health and Human Services (DHHS)Office for Civil Rights.
5. Rights of clients to request amendments to their information.
Clients have the right to request that the Department amend their information in
Department files.
Example #1 – A report mistakenly includes a typographical error, in which a birthday is
listed as 1989 rather than 1998. The client seeks an amendment to correct the error.
Example #2 – A report states that on a certain date, the client was agitated, distracted and
rude to the caseworker. The client seeks an amendment asking to delete the words used
to describe his or her behavior.
a. All requests for amendments to health information will be made by having the client
complete a DHS 2094, “Request for Amendment of Health Record”.
b. The Department must act on the client’s request no later than 60 calendar days of
receiving the request, except that if the Department is unable to act on the request
within 60 calendar days, the Department may extend this time limit by up to an
additional 30 calendar days, subject to the following:
A. The Department must notify the client in writing of the reasons for the delay and
the date by which the Department will act on the request; and
B. The Department will use only one such 30-calendar day extension.
c. Prior to any decision to amend a health or medical record, the request and any related
documentation shall be reviewed by the program’s medical director, a licensed health
care professional designated by the program administrator, or a Department staff
person involved in the client’s case. The Department will then proceed based on the
recommendation made by the program’s medical director or the licensed health care
professional.
DAP - Appendix 7.c
d. Prior to any decision to amend any other information that is not a health or medical
record, a Department staff person designated by the program administrator shall review
the request and any related documentation. The Department will then proceed with
the recommendations made by program administrators and program staff.
e. The Department is not obligated to agree to an amendment and may deny the requests
or limit its agreement to amend.
f. If the Department grants the request, in whole or in part, the Department must:
A. Make the appropriate amendment to the information or records, and document
the amendment in the client’s file or record;
B. Provide timely notice to the client that the amendment has been accepted and
updated pursuant to the time limitations in subsection 4.b.;
C. Seek the client’s agreement to notify other relevant persons or entities, with
whom the Department has shared or needs to share the amended information,
of the amendment; and
D. Make reasonable efforts to inform, and to provide the amendment within a
reasonable time to:
i. Persons named by the client as having received protected information and
who thus need the amendment; and
ii. Persons, including business associates of the Department, that the
Department knows have the protected information that is the subject of the
amendment and that may have relied, or could foreseeably rely, on the
information.
g. The Department may deny the client’s request for amendment if:
A. The Department finds the information to be accurate and complete;
B. The information was not created by the Department;
C. The information is not part of Department records; or
D. The information would not be available for inspection or access by the client,
pursuant to Section 4 of this Policy.
h. If the Department denies the requested amendment, in whole or in part, the
Department must:
A. Provide the client with a timely written denial. The denial must:
i. Be sent or provided within the time limits specified in subsection 4.l.;
ii. State the basis for the denial, in plain language;
iii. Explain that if the client does not submit a written statement of
disagreement, the client may ask that if the Department makes any future
DAP - Appendix 7.c
disclosures of the relevant health information, the Department will also
include a copy of the client’s original request for amendment and a copy of
the Department written denial;
iv. Explain the client’s right to submit a written statement disagreeing with the
denial and how to file such a statement; and
v. Provide information on how the client may file a complaint with the
Department, or with the U.S. Department of Health and Human Services
(DHHS), Office for Civil Rights.
B. If a client submits a written statement of disagreement with a denial of a request
to amend health information:
i. The Department will enter the written statement into the client’s Department
case file;
ii. The Department may also enter a Department written rebuttal of the client’s
written statement into the client’s Department case record. The Department
will send or provide a copy of any such written rebuttal to the client;
iii. The Department will include a copy of that statement, and of the written
rebuttal by the Department if any, with any future disclosures of the relevant
information.
6. Rights of clients to an accounting of disclosures of protected health information.
An accounting is simply a list or a statement of all the times the Department has given
health information to a program, entity or person. An accounting is only required for
health information that is covered by HIPAA.
a. Clients have the right to receive an accounting of certain types of disclosures of
protected health information (PHI) that the Department has made for any period of
time, not to exceed six years, preceding the date of requesting the accounting. This
right does not apply to disclosures made prior to March 31, 2003.
b. All requests for an accounting of disclosures will be made by having the client complete
a DHS 2096, “Request for Accounting of Disclosures.”
c. Department staff are responsible for tracking when health information is disclosed.
Disclosures that are required to be tracked must be listed on DHS 2097, “Disclosures
of Protected Health Information.” The accounting must include, for each disclosure:
A. The date of the disclosure;
B. The name, and address if known, of the person or entity who received the
disclosed information;
C. A brief description of the information disclosed; and
DAP - Appendix 7.c
D. A brief statement of the purpose of the disclosure that reasonably informs the
client of the basis for the disclosure, or, in lieu of such statement, a copy of the
client’s written request for a disclosure, if any.
d. The uses or disclosures for the following purposes must be tracked:
A. Abuse Report: If DHS staff (other than protective services staff who respond to
an abuse report) provides PHI about an individual pursuant to mandatory abuse
reporting laws, the disclosure should be tracked. State child abuse reporting
laws protect the identity of an abuse reporter so the accounting should not
identify the DHS staff person who made the report.
B. Audit Review: When Department staff use PHI from an individual’s record in
relation to an audit or review (whether financial or quality of care or other audit
or review) of a provider or contractor, the use should be tracked.
Also, when the Department provides client medical records or medical claims
payment records to the Secretary of State, Medicaid Fraud Unit or the Centers
for Medicare and Medicaid Services, or their representatives, this use should be
tracked.
C. Health and Safety: If the Department discloses PHI about an individual provided
to avert a serious threat to health or safety of a person, the disclosure should be
tracked. For example, when the Department issues a notice under its
Unauthorized Patient Leave Communications policy (DHS Policy DHS-120002), the disclosure should be tracked.
D. DHS as a Provider: When the Department is responsible for operating or
providing direct health care services, such as the state-operated group homes,
the Department may provide individual’s records in relation to licensing or
regulation or certification by a different component of DHS, state or federal
auditor, or a state or federal reviewer. The Department should track its
disclosures to entities with oversight over the Department’s provision of direct
health care services.
E. Legal Proceeding: DHS should track any time that PHI about an individual is
disclosed pursuant to a court order in a court case or other legal proceeding
include a copy of the court order with the accounting.
F. Law Enforcement Official/Court Order: If PHI about an individual is provided to
a law enforcement official pursuant to a court order include a copy of the court
order with the accounting.
G. Law Enforcement Official/Deceased: If the Department provides PHI to law
enforcement officials or medical examiner about a client who has died for the
purpose of identifying the deceased person, determining cause of death, or as
otherwise authorized by law, the disclosure should be tracked. The
Department’s accounting responsibility does not end when the person dies.
H. Law Enforcement Official/Warrant: The Department must track the disclosure of
DAP - Appendix 7.c
PHI provided to a law enforcement official in relation to a fleeing felon or for
whom a warrant for their arrest has been issued and the law enforcement official
has made proper request for the information, to the extent otherwise permitted
by law.
I. Media: Disclosure of protected health information about a client to the media
(TV, newspaper, etc.) must be tracked, unless the disclosure is made within the
scope of an authorization by the individual.
J. Public Health Official: When DHS staff (other than staff employed for public
health functions) provides PHI about an individual to a public health official, such
as the reporting of disease, injury, or in connection with the conduct of a public
health study or investigation, the disclosure must be tracked.
K. Public Record: Identifiable information about individuals should generally not be
disclosed in response to a public record request. However, in the unusual case
where PHI about an individual is disclosed pursuant to a Public Record request
without the individual’s authorization, the disclosure must be tracked.
L. Research: The Department’s internal analysis/studies conducted within health
care programs that the client is a part of for purposes of health care operations
need not be tracked. However, if the PHI will be used or disclosed for purposes
of other department programs or for research purposes by other entities, PHI
about an individual provided by the Department for purposes of research
conducted without authorization, using a waiver of authorization approved by an
IRB must be tracked. A copy of the research protocol should be kept with the
accounting.
e. Disclosures that are not required to be tracked and accounted for are those that are:
A. Authorized by the client;
B. Made prior to the original effective date of this policy, which is March 31, 2003;
C. Made to carry out treatment, payment, and health care operations;
D. Made to the client;
E. Made to persons involved in the client’s health care;
F. Made as part of a limited data set in accordance with the DHS Policy DHS100-07, “De-identification of Client Information and Use of Limited Data Sets.”
G. For national security or intelligence purposes;
H. Made to correctional institutions or law enforcement officials having lawful
custody of an inmate.
f. During the time period covered by the request, if the Department has made multiple
disclosures to the same person or entity for the same purpose, or as a result of a single
written authorization by the client, the Department need not list the same identical
information for each subsequent disclosure to the same person or entity. The
DAP - Appendix 7.c
Department may log the first disclosure made during the time period and add the
frequency or number of disclosures made to the same person or entity and the last date
of the disclosure made during the requested time period.
g. The Department must act on the client’s request for an accounting no later than 60
calendar days after receiving the request, except that if unable to provide the
accounting within 60 calendar days after receiving the request, the Department may
extend this requirement by another 30 calendar days. The Department must provide
the client with a written statement of the reasons for the delay within the original 60calendar day limit, and inform the client of the date by which the Department will
provide the accounting. The Department will use only one such 30-calendar day
extension.
If review of the file shows that records may have been provided to or maintained by,
one of the Department’s business associates, the Department should contact the
business associate and request a list of disclosures. The additional information
provided by the business associate must be included with the Department’s accounting.
Business associates include AAAs, the Office of Administrative Hearings, the Department
of Justice, and other entities engaged in department matters.
h. Fees: The Department must provide the first requested accounting in any 12-month
period without charge. The Department may charge the client a reasonable cost-based
fee for each additional accounting requested by the client within the 12-month period
following the first request, provided that the Department:
A. Informs the client of the fee before proceeding with any such additional request;
and
B. Allows the client an opportunity to withdraw or modify the request in order to
avoid or reduce the fee.
i. The Department must document and retain in the client’s Department case record file,
the information required to be included in an accounting of disclosures, as listed under
subsection 6c of this policy, and send a copy of the written accounting provided to the
client.
j. The Department will temporarily suspend a client’s right to receive an accounting of
disclosures that the Department has made to a health oversight agency or to a law
enforcement official, for a length of time specified by such agency or official, if the
agency or official provides a written statement to the Department that such an
accounting would be reasonably likely to impede their activities. However, if such
agency or official makes an oral request, the Department will:
A. Document the oral request, including the identity of the agency or official making
the request;
B. Temporarily suspend the client’s right to an accounting of disclosures pursuant to
the request; and
C. Limit the temporary suspension to no longer than 30 calendar days from the
DAP - Appendix 7.c
date of the oral request, unless the agency or official submits a written request
specifying a longer time period.
7. Rights of clients to file complaints regarding disclosure of information.
a. Clients have a right to submit a complaint if they believe that the Department has
improperly used or disclosed their protected information, or if they have concerns about
the privacy policies of the Department or concerns about Department compliance with
such policies.
b. Clients may file complaints with the Department, or (for protected health information)
with the U.S. Department of Health and Human Services (DHHS) - the Office for Civil
Rights (see subsection g of this section).
c. The Department will not intimidate, threaten, coerce, discriminate against, or take any
other form of retaliatory action against any person filing a complaint or inquiring about
how to file a complaint.
d. The Department does not require clients to waive their rights to file a complaint as a
condition of providing of treatment, payment, enrollment in a health plan, or eligibility
for benefits.
e. The Department will designate staff to review and determine action on complaints filed
with the Department. These designated staff will also perform these functions when
the Department is contacted about complaints filed with the U.S. Department of Health
and Human Services – the Office for Civil Rights.
f. The Department will document, in the client’s Department case file or record, all
complaints, the findings from reviewing each complaint, and Department actions
resulting from the complaint. This documentation shall include a description of
corrective actions that the Department has taken, if any are necessary, or of why
corrective actions are not needed, for each specific complaint.
g. The Department must give clients the specific person or office and address of where to
submit complaints:
State of Oregon Department of Human Services
Governor’s Advocacy Office
500 Summer Street, NE, E17
Salem, Oregon 97301-1097
Phone: 1-800-442-5238
Fax: 503-378-6532
Email: [email protected]
DAP - Appendix 7.c
U. S. Department of Health and Human Services, Office for Civil Rights
Medical Privacy, Complaint Division
200 Independence Avenue, SW
Washington, D.C. 20201
Toll free Phone: 877-696-6775
Phone: 866-627-7748
TTY: 886-788-4989
Email: mailto:[email protected]
Form(s):
•
•
•
•
•
•
DHS 2090, “Notice of Privacy Practices”
DHS 2093, “Request for Access to Records”
DHS 2094, “Request for Amendment of Health Record”
DHS 2095, “Request for Restriction of Use and Disclosures”
DHS 2096, “Request for Accounting of Disclosures of Health Records”
DHS 2097, “Disclosures of Protected Health Information”(PHI)
Policy(ies) that apply:
DHS-100-007 De-identification of Client Information and Use of Limited Data Sets
DHS-120-002 Unauthorized Patient Leave Communications
Reference(s):
•
•
45 CFR Part 164.522 – 164.528
Privacy/Security Glossary of Common Terms
Contacts
•
•
Jane Alm, DHS Privacy Officer, [email protected]
Privacy Program Office, (503) 945-5780
Policy History
•
Version 2.0:
- 07/01/09: This policy originated in March 2003 in order to meet compliance with
the federal HIPAA Privacy Rule. The 2009 revisions do not impact the policy's
compliance with HIPAA. The revisions are implemented to improve clarity and to
bring some of the language in line with other more familiar program-specific
privacy language.
•
Version 1.0
- 03/31/2003 – Initial Release
DAP - Appendix 7.d
DAP - Appendix 7.d
Appendix 7.e
Children, Adults and
Families
Policy Title:
Confidentiality of Client Information – OAR
Policy Number:
I-A.3.2
413-010-0000
thru 0075
Approved By: on file
Version:
Effective Date: 06/01/1999
Date Approved
Reference(s):



ORS 419A.255
Child Welfare Policy I-A.1, "Rights of Clients"
http://www.dhs.state.or.us/policy/childwelfare/manual_1/i-a1.pdf
PAM 9076-9077, "Confidentiality Matrix"
Form(s) that apply:

2099, "Authorization for Use and Disclosure of Information"
http://dhsforms.hr.state.or.us/Forms/Served/DE2099.pdf
Policy:
Purpose
413-010-0000
The purpose of these rules is to describe the circumstances in which the Department
may and may not disclose client information without a court order.
Statutory Authority: ORS 418.005
Stats. Implemented: ORS 419A.255, 409.225
Definitions
413-010-0010
(1) "Adult" means a person who is 18 years of age or older.
(2) “Child” means a person who is under 18 years of age.
(3) "Client" means a person to whom the Department provides Services and includes
children, parents, legal guardians, and legal custodians of unemancipated minor children who
receive Services. Individuals who apply for and individuals who are granted certifications to
operate foster homes are not clients. Adoptive parents are clients when:
Appendix 7.e
(a) The Department has placed a child with them on a designated adoption basis;
or
(b) They have signed a legal risk adoption agreement.
(4) "Client File" means a file that Child Welfare marks with the names of one or more
clients, into which the Department places all of the named clients' records. A client file may
contain confidential information about other clients and persons who are not clients.
(5) "Client Information" means confidential information about a client or identified with
a client.
(6) "Client Record" means any "record," as defined in section (11) of this rule, which
includes client information and is created by, requested by, or held by the Department. A client
record does not include general information, policy statements, statistical reports or similar
compilations of data, which are not identified with an individual child, family or other recipient of
Services.
(7) "Confidential Information" means information that is unavailable to the public by
statute, rule, or court order.
(8) "Court Appointed Special Advocate (CASA)" means a volunteer who is appointed
by the court, is a party to the juvenile proceeding, and advocates for the child pursuant to ORS
419A.170.
(9) "Disclose" means reveal or provide client information to a person, agency,
organization or other entity. Disclosing includes, but is not limited to:
(a) Showing or providing a client record or copy of a client record; and
(b) Orally transmitting client information.
(10) "Legally Emancipated” means a person under 18 years of age who is married or
has been emancipated by the court in accordance with the requirements of ORS 419B.558.
(11) "Record" means a record, file, paper, or communication and includes but is not
limited to any writing or recording of information including automated records and printouts,
handwriting, typewriting, printing, photostating, photographing, magnetic tapes, videotapes or
other documents.
(12) [email protected] means assistance that the Department provides clients and includes, but
is not limited to homemakers, intensive family Service workers, foster parents, child care
centers, private child care agencies treatment centers, mental health professionals, volunteers,
student interns, child protection teams, physicians and other health care providers, and Indian
social Service and child welfare agencies.
(13) "Voluntary Services" means Services that the Department provides at the request
of a person or persons and there is no open and related juvenile court proceeding.
Statutory Authority: ORS 418.005
Stats. Implemented: ORS 419A.255, 419A.170 and 409.225
Appendix 7.e
Protection of information
413-010-0030
In the interest of family privacy and to protect children, families and other recipients of
Services, except as provided by Oregon statutes and these rules:
(1) Client information is confidential.
(2) Client records are not available for public inspection.
(3) Oregon statutes and these rules regulate the Department=s disclosure of client
information by prohibiting disclosure of some client information, mandating disclosure of some
information, and giving the Department discretion to disclose some information, as
summarized below:
(a) Summary of some Aprohibited [email protected], See OAR 413-010-0035,
generally, which includes but is not limited to:
(A) Information compiled for criminal law enforcement purposes, See OAR
413-010-0035,(3);
(B) Alcohol and drug abuse treatment records. See OAR 413-0100035(6);
(C) Information in records sealed by a court order of expunction, See OAR
413-10-0035(7);
(D) Adoption records. See OAR 413-010-0035(8);
(E) Adoption assistance records. See OAR 413-010-0035(9);
(F) Information identifying a person who reported suspected child abuse.
See OAR 413-010-0035(10);
(G) Records and reports of child abuse. See OAR 413-010-0035(11); and
(H) Juvenile court records. See OAR 413-010-0035(121).
(b) Summary of some Amandatory [email protected], See OAR 413-010-0045 which
includes but is not limited to:
(A) A client 18 years or older, See OAR 413-010-0045(2)(a);
(B) A parent or guardian of a child receiving voluntary Services, See OAR
413-010-0045(2)(b);
(C) A juvenile or tribal court. See OAR 413-010-0045(2)(d);
(D) A child=s attorney in a juvenile proceeding. See OAR 413-0100045(2)(e);
(E) A parent or guardian of a child provided Services in certain
Appendix 7.e
circumstances. See OAR 413-010-0045(2)(b),(c); and
(F) A Court Appointed Special Advocate (CASA). See OAR 413-0100045(4).
(c) Summary of some Amandatory disclosures if it is in the child=s best [email protected]
See OAR 413-010-0055, generally, which includes but is not limited to:
(A) DHR employees as needed to perform their duties and provide
Services to the child or family, See OAR 413-010-0055(1)(a); and
(B) Persons providing Services to the family to the extent necessary to
provide those Services described in OAR 413-010-055(1)(c).
(d) Summary of some Adiscretionary [email protected] See OAR 413-010-0065
generally, which includes but is not limited to:
(A) The Department and other state employees for audits, program
reviews, or quality control;
(B) Law enforcement or district attorney=s offices for child abuse
assessments and investigations and proceedings connected with administering
the child welfare laws. See OAR 413-010-0065(2)(b);
(C) The public if a child in the Department=s custody has been abducted or
is believed abducted. See OAR 413-010-0065(2)(c);
(D) General information, policy statements, statistical reports or similar
compilations not identified with a client. See OAR 413-010-0065(3);
(E) Adult=s presumed waiver of confidentiality. See OAR 413-010-0065(4);
(F) Review of Child Welfare records for research purposes. See OAR
413-010-0065(5); and
(G) Investigation of Other Crime. See OAR 413-010-0065(6).
Statutory Authority: ORS 418.005, 418.340
Stats. Implemented: ORS 7.211, 409.225, 419A.255, 419A.260, 419B.035, 430.763,
432.420
Prohibited disclosures
413-010-0035
(1) If a court order or a specific statute requires the Department to disclose information
that this rule protects, the Department shall disclose the information.
(2) The Department shall not disclose client information:
(a) For purposes not directly connected with the administration of child welfare
laws; or
(b) When disclosure is neither required nor authorized by:
Appendix 7.e
(A) ORS 419B.035 (governing confidentiality of child abuse records), set
out below in OAR 413-010-0035(11);
(B) ORS 419A.255 (governing confidentiality of juvenile court records) set
out below in OAR 413-010-0035(12);
(C) The information is protected by other law.
(3) The Department shall not disclose investigatory information compiled for criminal law
purposes, including the record of an arrest or a report of a crime, unless law enforcement
explicitly authorizes the Department to disclose such information.
(4) The Department’s employees shall not disclose the information described in section
(3) of this rule unless authorized to do so by the branch manager or designee.
(5) A person authorized to review client records may not review the complete case file if
the complete file contains confidential information about other persons, including, but not
limited to other client=s, ex-spouses, battering partners, housemates, and half-siblings unless
the other person provides written consent that meets the requirements of OAR 413-0100045(2)(a).
(6) The Department shall not disclose the records of a patient at a drug and alcohol
abuse treatment facility to any person without the consent of the patient.
(7) The Department shall not disclose client information contained in a record sealed by
a court order of expunction or any part of the expunged record.
(8) Disclosure of Adoption Records:
(a) The Department shall neither disclose nor release identifying information to
anyone regarding the birth parents of a child who is placed for adoption. It is the intent
of this rule to protect from release any information about a child placed for adoption that
will link the child to the birth family or the birth family to the child. The whereabouts and
new identity of a child shall not be revealed to anyone seeking information about the
child by his or her birth name, except as otherwise provided by law;
(b) Identifying information from adoption files may be given to an adult adoptee
or adult genetic sibling (age 21 or older) and to a birth parent when they have met the
legal requirements of the Voluntary Adoption Registry as specified in ORS 109.425 to
109.507 and OAR 413-130-0300 to 413-130-0360;
(c) When an adoption is finalized, the records must be sealed and may be
opened only pursuant to a court order. Only the Department central office adoption staff
shall have access to the files. The adoption manager or designee may approve the
release of non-identifying information from the files to the child or to the adoptive
parents or their designee to provide information about the child=s early history or familial
history;
(d) The Department shall not disclose information about adoptive placements.
(9) Disclosure of Adoption Assistance Records:
Appendix 7.e
(a) Records and information obtained or created by the Department for the
purposes of determining eligibility or making payment for adoption assistance are
confidential. Only the Department central office adoption staff shall have access to the
files. The Department shall not use or disclose the information except for purposes
directly connected with the administration of the adoption assistance program (42 USC
671(a)(8);
(b) Notwithstanding subsection (1) of this rule, use and disclosure of adoption
records are governed by ORS 7.211, 432.420.
(10) Reporter of Abuse. The identity of the person(s) making a report of suspected child
abuse, and any identifying information about the reporting person(s), shall be removed from
the records or shielded from view before records are viewed or copied. The name, address or
other identifying information shall only be disclosed to a law enforcement officer or district
attorney in order to complete an investigation report of child abuse.
(11) Reports and Records Compiled Pursuant to the Child Abuse Reporting Law:
(a) Each report of suspected child abuse shall be immediately reported to a law
enforcement agency;
(b) Child Welfare shall assist in the protection of a child who is believed to have
been abused or neglected by providing information as needed to:
(A) The juvenile court;
(B) The district attorney;
(C) Any law enforcement agency or a child abuse registry in another state
investigating a child abuse report;
(D) Members of a child protection team or consultants involved in
assessing whether or not abuse occurred and determining appropriate treatment
for the child and family;
(E) A physician who is examining a child or providing care or treatment,
and needs information about the child=s history of abuse; and
(F) A non-abusing parent, foster parent or other non-abusing person
responsible for the care of the child.
(c) A report, record, or findings of an assessment of child abuse shall not be
disclosed until the assessment is completed, except for the reasons stated in
subsections (e)(A) and (B) of this rule. An assessment will not be considered
completed while either a protective Service assessment or a related criminal
investigation is in process. Child Welfare is responsible for determining when the
protective Service assessment is completed. The district attorney determines when a
criminal investigation is completed.
(d) Records or findings of completed child abuse assessments shall be released
upon request to the following:
Appendix 7.e
(A) Attorneys of record for the child or child=s parent or guardian in a
juvenile court proceeding for use in that proceeding; and
(B) A citizen review board established by Child Welfare or by a juvenile
court to review the status of children under the jurisdiction of the court for the
purpose of completing a case review. Before providing information to a citizen
review board, Child Welfare shall assure that the board has informed participants
of their statutory responsibility to keep the information confidential, and will
maintain records in an official, confidential file.
(e) Records or information from records of abuse and neglect assessments may
be disclosed to other interested parties if the Department determines that disclosure to
a person or organization is necessary to:
(A) Administer child welfare Services and is in the best interests of the
affected child. When disclosure is made for the administration of child welfare
Services, the Department will release only the information necessary to serve its
purpose; and
(B) Prevent abuse and neglect, to assess reports of abuse and neglect or
to protect children from further abuse or neglect.
(12) Juvenile Court Records in the Department files:
(a) The juvenile court=s Arecord of the [email protected] is the Alegal [email protected], which includes the
summons, other process, the petition, all papers in the nature of pleadings, motions,
orders of the court and other papers filed with the court;
(b) The legal file is confidential and unavailable for public inspection, but is open
to inspection by the child=s parent, guardian, court appointed special advocate,
surrogate, intervenor under ORS 109.119(1) and their attorneys;
(c) The juvenile court=s social file includes reports and other material relating to
the child=s history and prognosis;
(d) The social file shall, except at the request of the child, not be disclosed
directly or indirectly to anyone other than the juvenile judge and staff acting under the
judge=s direction, Service providers in the case, and the attorneys of record for the child
or the child=s parent, guardian, court appointed special advocate, surrogate or
intervenor under ORS 109.119(1);
(e) No information in the legal and social files may be disclosed to any other
person not described in subsections(2) and (4) of this rule without the consent of the
court, except:
(A) For evaluating the child=s eligibility for special education under ORS
Chapter 343; or
(B) In connection with a proceeding in another juvenile court concerning
the child.
Appendix 7.e
(f) The following information in the juvenile court=s file is not confidential and must
be disclosed upon request:
(A) The name and date of birth of the child;
(B) The basis for the juvenile court=s jurisdiction over the child;
(C) The date, time and place of any juvenile court proceeding in which the
child is involved.
Statutory Authority: ORS 418.005. 418.340
Stats Implemented: ORS 7.211, 409.225, 419A.102, 419A.255, 419A.2623,
419B.035, 430.763, 432.420
Mandatory disclosure
413-010-0045
(1) The Department shall disclose client information if disclosure is required by ORS
419A.255 or ORS 419B.035.
(2) Unless a client record is exempt from disclosure under the Public Records Law,
ORS Chapter 192, the Department shall disclose the client record in the circumstances
described below:
(a) If the client is 18 years or older or legally emancipated, the Department shall
disclose, upon request:
(A) The client's records to the client if no court order prohibits the
disclosure; or
(B) The client's records to a third party if no court order prohibits the
disclosure and the client has authorized the Department in writing to disclose the
records to the third party.
(b) Upon the request of a child's parent or legal guardian, the Department shall
disclose a child's client records to the parent or legal guardian if the child is receiving
voluntary DHS Services;
(c) Upon the request of a child=s parent or legal guardian, the Department shall
disclose a child=s client records to the parent or legal guardian if the child is or has been
in the Department’s custody except:
(A) If the child objects;
(B) Disclosure would be contrary to the best interests of any child; or
(C) Disclosure could be harmful to the person caring for the child, which
includes, but is not limited to, foster parents, treatment providers and relatives
other than the child=s parent or legal guardian.
(d) The Department shall disclose a child=s client record to the juvenile court in
juvenile proceedings, including tribal proceedings regarding the child;
Appendix 7.e
(e) The Department shall disclose a child=s client records to an attorney who
identifies himself or herself as the child=s attorney if the juvenile court confirms that he or
she is the attorney of record in a juvenile proceeding.
(3) Information related to Child Welfare's activities and responsibilities in child abuse or
neglect cases. Upon request, the Director or the Director's designee shall review the
information related to Child Welfare activities and responsibilities:
(a) When child abuse or neglect causes the death or near death of a child or an
adult is charged with a crime related to child abuse or neglect; and
(b) Unless the information is exempt from disclosure under other law, the
Director or the Director's designee shall determine an appropriate time for disclosing the
information and that determination shall depend on, among other things, the status of
any child abuse or criminal investigations and the privacy interests of the victims.
(4) Disclosure to Court Appointed Special Advocate (CASA):
(a) Access to information. Upon presentation of the order of appointment by the
court, a CASA, without the consent of the child or children or parents, may inspect and
copy any records relating to the child or children involved in the case held by the
following entities:
(A) DHS, the state courts, and any other agency, office or department of
the state; and
(B) Hospital, school organization, division, doctor, nurse or other health
care provider, psychologist, psychiatrist, police department or mental health
clinic.
(b) All records and information acquired or reviewed by a CASA during the
course of official duties are confidential;
(c) When a CASA is also the guardian ad litem pursuant to federal law, this rule
governs the guardian ad litem=s access to information.
(5) If, in the professional judgment of the caseworker, information about a child indicates
that the child presents a clear and immediate danger to another person or entity, the
Department shall disclose the information to the appropriate authority and to the person or
entity in danger. The decision to release information in these circumstances will be made in
consultation with a supervisor.
Statutory Authority: ORS 418.005
Stats. Implemented: ORS Chapter 192, 409.225, 419A.170, 419B.035
Mandatory disclosure if in the child's best interest
413-010-0055
(1) Unless client information is exempt from disclosure under another provision of law,
and if disclosure is in the child's best interest, the Department shall disclose the client
information records to the following persons:
Appendix 7.e
(a) Employees of the Department of Human Services to the extent necessary to
perform their official duties, determine the child=s or family=s eligibility for Services, or
provide Services to the child or family;
(b) The Support Enforcement Division, when information is needed in order to
locate children or absent parents, and to establish support for children in substitute
care; and
(c) Treatment providers, foster parents, adoptive parents, school officials or other
persons providing Services to the child or family to the extent that such disclosure is
necessary to provide Services to the child or family:
(A) Such Services include, but are not limited to, those provided by
homemakers, intensive family Service workers, foster parents, child care centers,
private child carrying agencies, treatment centers, Indian social Service or child
welfare agencies, physicians and other health care providers, mental health
professionals, volunteers, student interns, child protection teams.
(2) Sensitive Review Committee. Unless client information is exempt from disclosure
under ORS Chapter 192 or another provision of law, and if disclosure is in the child's best
interest, the Director or the Director's designee shall direct disclosure of relevant client
information to persons appointed to a sensitive review committee convened by the Director to
determine whether the Department acted appropriately and made recommendations to the
Department regarding policy and practice.
Statutory Authority: ORS 418.005
Stats. Implemented: ORS 409.225
Discretionary disclosure
413-010-0065
(1) The Department may disclose client information when disclosure is required or
authorized by:
(a) ORS 491B.035 (governing confidentiality of child abuse reports and records),
set out in OAR 413-010-0035(11); or
(b) ORS 419A.255 (governing confidentiality of juvenile court records) set out in
OAR 413-010-0035(12).
(2) The Department may disclose client information for purposes directly connected with
the administration of child welfare laws including, but not limited to:
(a) Disclosure to employees of the Secretary of State=s Office, the Department of
Administrative Services, the Department of Health and Human Services, and DHS who
require information to complete audits, program reviews and quality control;
(b) Disclosure to law enforcement officers and district attorneys= offices needing
information for child abuse assessments, criminal investigations, civil and criminal
proceedings connected with administering the agency=s child welfare programs; and
(c) Disclosure to the public if a child in the Department=s legal custody has been
abducted or is missing and believed to be abducted, and is in danger of harm or a threat
Appendix 7.e
to the welfare of others. The Department may disclose limited information to the extent
necessary to identify, locate, or apprehend the child, including the child=s name,
description, and that the child may pose a threat to the public or himself or herself.
(3) The Department may disclose general information including, but not limited to policy
statements, statistical reports or similar compilations of data which are not identified with an
individual child, family or other recipient of Services, unless protected by other provisions of
law.
(4) Presumed waiver of protection of ORS 409.225(1). The Department may disclose
the information described in section (4)(f) of this rule if the Director or the Director=s designee
determines that all of the following circumstances are present:
(a) An adult client is the subject of client information made confidential by ORS
409.225(1);
(b) The Public Records Law does not exempt the information from disclosure;
(c) The adult client has publicly revealed or caused to be revealed any significant
part of the confidential information and thus is presumed to have voluntarily waived the
confidentiality protection of ORS 409.225(1);
(d) Disclosure is in the best interest of the child; and
(e) Disclosure is necessary to the administration of the child welfare laws;
(f) If disclosure is authorized, the Department may disclose the following:
information about the person making or causing the public disclosure, not already
disclosed, but related to the information made public.
(5) Review of the Department’s records for research purposes. The Director or the
Director=s designee may authorize a person or organization to review the Department’s records
for research purposes. The Department may not approve the request until the researcher has
agreed, in writing, to maintain the confidentiality of individual clients, not to copy DHS records,
and not to include identifying information about any client in the report(s) of the research.
(6) Investigation of Other Crime:
(a) Except as authorized by OAR 413-010-0065(2)(b), and ORS 409.225, DHS
employees shall not disclose to law enforcement client information obtained from client
records, conversations with clients or other sources if the employee(s) acquired the
information because a person is or has been a Child Welfare client of the agency;
(b) A manager or the manager=s designee may disclose to law enforcement a
client=s current address when:
(A) The law enforcement officer provides the name and social security
number of the client; and
(B) The officer satisfactorily demonstrates that the client is a fugitive felon
(as defined by the state), the location or apprehension of such felon is within the
law officer=s official duties, and the request is made in the proper exercise of
Appendix 7.e
those duties.
Statutory Authority: ORS 418.005, 419B.035
Stats Implemented: ORS 409.225, 409B.230, 419A.225, 419B.035
Disclosure of information exempt under the public records law
413-010-0068
Unless required by court order or specific statute, the Department shall not disclose
information in a client file if the information is exempt under the Public Records Law.
Statutory Authority: ORS 418.005
Statutes Implemented: ORS 418.005
Disclosure procedures
413-010-0075
(1) The manager or the manager=s designee shall supervise access to records.
(2) The manager or manager=s designee must approve in writing to the disclosure or
redisclosure of client information in the following circumstances:
(a) The Department currently is the child=s legal custodian or guardian or the
Department was the child=s legal custodian or guardian when the Department
authorized Services;
(b) The Department currently is serving the child pursuant to an Interstate
Compact or other interstate agreement; and
(c) The child is or was evaluated or provided Services in conjunction with an
Child Welfare assessment following a protective Service report, regardless of the child=s
legal status at the time.
(3) The Department may require a reasonable period of time to prepare a client=s record
for review at the branch or disclosure by mail.
(4) The Department may require that a person who seeks to review client records,
review the records at an appointed time.
(5) Except as provided in OAR 413-010-0065(5), (access to records for research
purposes), a person authorized to review the Department’s record may copy the record.
(6) Any record disclosed shall be kept confidential by the person to whom the record is
disclosed and shall be used only for the purpose for which disclosure was made.
(7) To redisclose lawfully, the person must obtain, before the redisclosure, the written
consent of the branch manager or the branch manager=s designee.
(8) All social Service agencies, courts, foster parents, Service providers (including
medical providers), or agents of the Department providing Services to a DHS client at the
request of the agency are subject to the Oregon statutes and DHS rules governing disclosure
of client information.
(9) The Department shall not permit a person authorized to review a particular client=s
Appendix 7.e
file to review the complete file if the file includes information about any other client. The
Department shall permit review of the particular client=s records.
(10) When copies of confidential information are released, the material must be
stamped: AConfidential not to be [email protected]
(11) When confidential records and information are part of the record in an
administrative hearing before DHS, DHS and all participants in the hearing shall take all
reasonable measures to maintain the confidentiality of the information.
Statutory Authority: ORS 418.005, 419B.035
Stats Implemented: ORS 418.005, 419A.255
Contact(s):

Name: CAF Reception; Phone: 503-945-5600
Policy History

12/29/1995
DAP - Appendix 8.a
DAP - Appendix 8.a
Mission Statements:
DHS:
Helping people to become independent, healthy and safe.
OCDN:
To strengthen the ability of each CASA program in Oregon to
advocate for safe permanent homes for abused and neglected
children.
OCCF:
A partnership of citizens and professionals working together to
improve the lives of children and families in Oregon’s local
communities. OCCF facilitates and supports local, coordinated,
comprehensive planning for all children and families, promotes
system integration, and provides leadership for local and state
efforts focused on early childhood.
SECTION 1: ROLES AND RESPONSIBILITIES
A. Partnership Roles and responsibilities of SDA Managers (or
designees) and CASA Directors (or designees)
1. The SDA Manager and CASA Director will model and foster a
partnership that promotes mutual respect.
2. The SDA Manager and CASA Director will negotiate local agreements
within the parameters of this MOU and ensure their implementation.
a. The SDA Manager and CASA Director will develop, model and foster
effective communication strategies;
b. The SDA Manager and CASA Director will develop, model and foster
effective conflict resolution strategies; and
c. The SDA Manager and CASA Director will ensure that training on
roles and responsibilities of each is provided to new and current child
welfare staff and CASA volunteers and staff.
3. The SDA Manager and CASA Director will establish and maintain
regular (at least quarterly) contact in order to discuss specific and
systematic program issues.
4. Local agreements will include a working definition of “timely” that meets
the needs of both programs.
3
DAP - Appendix 8.a
B. Roles and responsibilities of the CASA
1. A CASA is a legal party to the juvenile dependency case in which the
CASA is appointed by the Court. Pursuant to ORS 419A.170, it is the
responsibility of the CASA to:
a. Investigate all relevant information about the case;
b. Advocate for the best interests of the child, ensuring all relevant facts
are brought before the court;
c. Facilitate and negotiate to ensure that the court, DHS, and the child's
attorney, if any, fulfill their obligations to the child in a timely fashion;
and
d. Monitor all court orders to ensure compliance and to bring to the
court's attention any change in circumstances that may require a
modification of the court's order.
2. The child welfare caseworker can expect that a CASA will:
a. Contact the child regularly as appropriate to the case;
b. Provide consistent advocacy for the child from case assignment until
the court vacates the CASA appointment. The goal is to provide one
CASA from initial assignment to closure of the case;
c. Monitor educational, health, mental health, developmental and dental
needs, assessments and treatment implementation;
d. Recommend appropriate services for the child or family, but not
provide the service;
e. Monitor changes in the child’s placements;
a. Attend/participate in all court proceedings regarding the child
(hearings, dispositions, CRBs, etc.);
g. Attend/participate in other agency meetings regarding the child as
appropriate;
h. Advocate for but not provide transportation for the child or family;
i. Recommend and monitor appropriate visits between the child and the
parent(s), and other appropriate persons but not supervise the visits;
and
j. Make written reports and recommendations to the court.
C. Roles and Responsibilities of the Child Welfare Caseworker
1. DHS has the primary responsibility for providing services for children in
the care of DHS, which includes the responsibility to:
4
DAP - Appendix 8.a
a. Assess safety threats to children;
b. Develop and implement plans for safety, permanency and well being;
c. Provide and obtain timely and appropriate services for the child and
family;
d. Recommend court appointment of a CASA, when appropriate.
2. CASAs can expect that a child welfare caseworker will provide the
following casework services:
a. Contact child regularly, according to policy;
b. Receive and assess allegations of child abuse;
c. Develop safety plans including maintaining children safely with their
families, placement of children in substitute care.
d. Engage families in decision-making meetings to identify children's
needs, family strengths and appropriate services;
e. Develop, record and implement case plan and concurrent case plan;
and
f. Obtain and provide appropriate services for the child or family to meet
the child's safety, permanency and well being needs;
g. Develop a visitation plan appropriate to the safety and attachment
needs of the child;
h. Assess and monitor educational, health, mental health, and dental
needs of the child;
i. Monitor child’s placements;
j. Attend/participate in other agency meetings regarding the child as
appropriate; and
k. Make written reports and recommendations to the court.
SECTION 2: COMMUNICATION
A. Initial and on-going communication between the CASA and the
child welfare caseworker
1. After the CASA is appointed to a case they will make an appointment to
meet the caseworker. The caseworker must meet with the CASA as
soon as possible. At that meeting the CASA and the child welfare
caseworker will:
5
DAP - Appendix 8.a
a. Agree on a communication plan including e-mail/phone/fax
preferences, long or short messages, and exchange of usual and
emergency contact information;
b. Review the case including the case history, the case plan, the
permanency plan and the concurrent plan; and
c. Discuss how the CASA and child welfare caseworker can work
together to achieve safety, permanency and well being for the
child(ren).
2. Throughout the case the child welfare caseworker and the CASA will
provide frequent updates and return e-mail/phone/fax within 48 hours.
3. The child welfare caseworker and the CASA will share court reports
prior to court presentations (meeting in person if possible) according to
local court expectation.
SECTION 3: RECORDS ACCESS
1. The effective work of the CASA depends on timely access to complete
information. According to ORS 419A.170, the appointed CASA shall
have access to information relating to the child from the child's file. The
full record, with the exception of the reporter's identity, may be accessed
by:
a. Authorization for use and disclosure of information;
b. Court order; or
c. Through the process of discovery.
2. DHS may not disclose to CASA information that identifies persons who
have reported child abuse and neglect.
3. Both DHS employees and CASA employees/volunteers have statutory
responsibilities to maintain the confidentiality of records under both state
and federal law including ORS 419B.035, 419A.225, 409.225 ORS
419A.170, HIPAA and 42 CFR Part governing drug and alcohol
treatment records.
4. The local agreement negotiated by the SDA Manager and CASA
Director will address efficient access to child records that:
a. Provides initial access to the child’s file to the CASAs at the DHS
6
DAP - Appendix 8.a
office within 24 hours, if possible, but not more than three (3) working
days from the request;
b. Allows CASAs sufficient space and time to read the file and make
notes;
c. Allows CASAs access to files without constant supervision;
d. Allows DHS staff or the CASA to copy the portions of the file the
CASA deems necessary, except for information relating to the identity
of the reporter and other parts of the file that may not be open (see
paragraphs 1 and 2 above);
5. The CASA, after reading or copying case files, will return the DHS file
material in the same order as contained in record.
6. CASAs or CASA programs will not be charged for copies.
SECTION 4: HOME STUDY REPORT
1. OAR 413-010-0081 establishes the procedures for the review of
adoption home studies by the CASA for the child(ren).
2. Redactions are not necessary if the prospective adoptive family signs a
release to allow the CASA to view the entire document.
3. The adoption home study will be modified (redacted) prior to the release
to the CASA.
4. Redactions will be the information that is confidential by federal or state
law:
a.
b.
c.
d.
Protected health information;
Mental health information;
Substance abuse information;
Criminal record check information.
5. Other redactions will be made, per OAR 413-010-0084(2), to ensure that
the prospective adoptive family cannot be identified.
6. In some cases, a redaction may not protect the identity of a family, and
a summary may
be used.
7
DAP - Appendix 8.a
PROCEDURE
1. The caseworker shall notify the CASA that the Adoption Home Study
Report has been selected for consideration by the adoption committee,
as soon as practicable after its selection, but no later than 10 business
days before the adoption committee meets.
2. The CASA must request a copy of the redacted report no later than
seven days prior to the scheduled adoption committee. Local programs
may have informal agreements to release reports without a request by
the CASA.
3. The caseworker must submit the redacted Adoptive Home Study to the
local CASA director no later than three business days before the
adoption committee. Redactions, if necessary, must be completed by
that date.
4. If another Adoptive Home Study is selected within ten days of the
adoption committee meeting, the CASA will be informed, as soon as
possible, and provided the redacted copy as requested.
5. The local CASA director or designee will retain the report at the CASA
office for the CASA to review. The local CASA program director must
retain the report or summary, keep it secure, and allow the child’s
CASA to review and take notes from the report at the office of the local
CASA program.
6. The CASA director may not re-disclose any information contained in the
report for any purpose other than discussing the needs of the child with
DHS, the CASA’s supervisor, the child’s attorney, the court, the child’s
tribe or the adoption committee.
7. The CASA director or designee cannot make copies of the report and
will shred or return the report to DHS pending the outcome of an
adoption committee or appeal.
SECTION 5: NOTIFICATION
1. The appointed CASA will receive timely notification of:
a. All DHS staff and family meetings relevant to the child;
8
DAP - Appendix 8.a
b.
c.
d.
e.
Sibling planning conferences;
Placement change of the child;
Current caretaker committee meetings; and
Adoption committee meetings.
2. Cancellations and rescheduling will be communicated immediately to the
CASA or CASA program.
3. The CASA will RSVP to meeting notifications in a timely fashion.
SECTION 6: ACCESS TO THE CHILD
1. DHS will include in the pre-service training for foster and adoptive
parents information about the CASA’s role including their statutory
authority and need to visit the child.
2. Both CASA and DHS will actively facilitate and support positive working
relationships between biological parents, foster parents, and adoptive
parents.
3. The CASA will have reasonable access to the child in the home, foster
home, or other placements, including an adoptive placement.
4. The CASA may have private conversations with the child. These
conversations may occur in the home, foster home, other placement, or
in a public setting.
5. The CASA’s appointment remains in effect until the Court vacates the
appointment or the petition is dismissed. After the appointment is
vacated there is no legal relationship between the CASA and the child
and/or official contact with the child, the adoptive parent(s) or other
parties.
SECTION 7: CONFLICT RESOLUTION
1. DHS and OCDN expect that cooperative problem solving will occur.
Both child welfare caseworkers and CASAs are supervised; supervisors
will be utilized in conflict resolution when necessary.
2. The SDA Manager (or designee) and the CASA Director (or designee)
will meet regularly and work together to address concerns.
9
DAP - Appendix 8.a
3. The local agreement will address conflict resolution and will require:
a. Documentation of the concern, including the frequency, who is
involved, whether the issues are based in policy, practice or
personality, etc;
b. Direct communication between the persons involved in the concern;
c. Communication with the supervisor(s);
d. Development and implementation of a resolution strategy involving the
individual(s) and the supervisor(s) before taking the issue to the next
management level(s); and
e. That if a timely resolution cannot be reached at the local management
level, or if the issue has ramifications beyond the local DHS office or
program, the SDA manager will contact the Administrator-CAF Office
of Safety and Permanency for Children (OSPC), and the CASA
director will contact the CASA State Coordinator. The CASA State
Coordinator and the CAF OSPC Administrator will work together with
the local programs to address the issues.
SECTION 8: TRAINING
1. Positive working relationships develop more effectively when each
individual understands the roles and responsibilities of both the child
welfare caseworkers and CASAs. The local agreements will include a
clear reciprocal plan for training, which will include, but is not limited to
the following:
a.
Cross-training opportunities about CASA and Child Welfare
Caseworker roles and responsibilities, MOU, mandates and policies.
Examples:
· Foster/Adoptive Parent Training
· In-service Training
· Orientation/Pre-Service Training for Staff/Volunteers
b. Joint training sessions, on current issues and practice related to child
neglect, and Alcohol and Drug, ICWA, ICPC, and Family Meetings. (
FDM, TDM, and OFDM)
Examples:
· Invitations to In-Service Training
· Community Training
· Co-Developed Training
10
DAP - Appendix 8.a
c. Opportunities for interaction between CASA and Child Welfare
Caseworker/Staff
Examples:
· Ride Alongs
· Get Togethers/Brown Bags
· Work together on joint projects
GENERAL PROVISIONS
1. Services to Culturally Diverse Children and Families: Providing equal
access to and maximum benefit from services for children and youth
who are members of culturally diverse groups is a priority for DHS,
OCCF and OCDN. To request information, call Gloria Anderson at 503945-7000.
2. Compliance with the Americans with Disabilities Act: This memorandum
is available in alternate formats such as Braille, large print, audio tape,
oral presentation, and computer disk. To request an alternate format call
the State of Oregon Department of Human Services, Contracts and
Procurement Unit at (503) 945-5818 or TTY (503) 945-5928.
11
DAP - Appendix 8.a
CASA/MOU
DEFINITIONS
CAF (Children, Adults and Families): The DHS program area responsible
for administering self-sufficiency and child-protective programs. These
include JOBS, Temporary Assistance for Needy Families (TANF),
Employment Related Day Care, Food Stamps, child-abuse investigation
and intervention, foster care and adoptions.
CASA (Court Appointed Special Advocate): A volunteer who is appointed
by the court, is a party to the juvenile proceeding, and is an advocate for
the child pursuant to ORS 419A.170
Child Welfare Manager: A CAF manager or supervisor who supervises
Child Welfare case workers and reports to an SDA Manager.
Child Welfare Worker: A CAF employee who works directly with clients
and reports to a Child Welfare Manager or supervisor.
Concurrent case plan: A second plan developed by the Child Welfare
caseworker in cases where the primary plan is return home that will be
implemented to provide permanency for the child if the return home plan
fails.
CRB (Citizen Review Board): Trained citizen volunteers who conduct case
reviews of children and youth in substitute care to ensure that appropriate
services and plans are in place.
DHS (Department of Human Services): Oregon State’s health and human
services agency. Established in 1971 as the Department of Human
Resources, it changed to its current name in 1999.
Legal Party to the Case: A person with legal rights in a juvenile
dependency case as outlined in ORS 419B.875 including the right to notice
of court proceedings, copies of petitions, answers, motions and other court
papers, the right to appear in court proceedings, the right participate in
hearings and the right to request hearings. Parties to juvenile dependency
cases also have the right to “discovery” as outlined in ORS 419B.881.
ICPC (Interstate Compact for Placement of Children): State law that
governs the interstate placement of children, including the responsibilities
12
DAP - Appendix 8.a
of “sending” and “receiving” states for a child who is under one state’s
jurisdiction and physically placed in another state. See ORS 417.200 to
417.267.
ICWA (Indian Child Welfare Act): Federal law that prescribes specific legal
and procedural requirements that must be observed when an “Indian child”
is the subject of a child custody proceeding, including a juvenile
dependency proceeding. See 25 USC §§1901 through 1934.
SDA Manager: A CAF manager responsible for oversight of a geographic
area including a county or counties designated as a “Service Delivery Area”
or “SDA” defined by region. Such managers also serve as legislative
liaisons to the field office and report directly to the CAF Deputy Director.
Family Meetings: Facilitated meetings to address safety concerns and
service planning. These meetings include family, DHS, DASA, and other
significant community partners.
GENN7182.DOC
13
DAP - Appendix 8.b
DHS/CRB MEMORANDUM OF UNDERSTANDING
This Memorandum of Understanding between the State of Oregon Department of Human
Services, Children Adult & Families Division, hereinafter referred to as DHS, and State of
Oregon Judicial Department, Citizen Review Board, hereinafter referred to as CRB, begins
upon execution of this Memorandum of Understanding by both parties and ends March 16,
2013.
By the signatures below of their authorized representatives, DHS and the CRB hereby jointly
acknowledge the importance of effective and efficient review of service delivery to the children
and families of Oregon in promoting improved outcomes. This Memorandum of Understanding
describes protocols that CRB and DHS believe will further that goal.
1.
DEFINITIONS
1.1
Case Plan: A written goal oriented, time limited individualized plan for the child
and the child's family, developed by the Department and the parents or legal
guardians, to achieve the child's safety, permanency and well being.
1.2
Case Review (CRB review, Review): A process by which local citizen review
boards use the written Case Plan, and other supporting documents, and a
scheduled meeting with parties to make the findings and recommendations
required by ORS 419A.116 that are reported to the court, DHS and other parties.
Case review by the CRB meets the requirements of "administrative review" under
SEC. 475 of the Social Security Act and is the "case review system" described
under the Act.
1.3
Continuance: A circumstance in which the case review is not concluded at the
end of its regularly scheduled meeting. No written findings or recommendations
are issued until after the conclusion of the case review, which is typically the
following month. Subsequent review due dates will be generated from the date
that the review began.
1.4
Court Relief: An option of the court when they have issued written findings
required under ORS 419B476 or substantially the same findings under ORS
419A.116, that meet the criteria for periodic review.
1.5
CRB: A program of the Court Programs & Services Division in the State Court
Administrator's Office of the Oregon Judicial Department responsible for
establishing and supporting local citizen review boards pursuant to ORS
419A.090. The CRB program is the case review system, required by federal law,
for the state of Oregon responsible for assuring periodic review. In the context of
t~lis memorandum, "CRB" may also refer to the local citizen review board that
does the case review.
1.6
DH5: For the purpose of this memorandum, reference to DHS means the
Children, Adult and Families Division specifically.
DAP - Appendix 8.b
1.7
Early Review: A case review set prior to the next review due date to assess an
aspect of the case that has a material effect on the permanency outcome in the
Case Plan.
1.8
Essential Party: A person specifically named as entitled to notice of CRB
reviews pursuant to ORS 419A.098 (3); and any other parties listed by the
Department of Human Services (DHS) or listed in the Court order.
1.9
Findings and Recommendations: A written report required under ORS
419A.116 that addresses reasonable efforts, case compliance, parental
progress, progress toward alleviating the need for placement, the need for and
appropriateness of placement a likely date to return home, and other problems,
solutions or alternatives.
1.10 Interpreter: A professional person, not employed by DHS or CRB, who provides
oral transfer of meaning from one language to another for a party who is Limited
English Proficient (LEP)
1.11
Interested Party: A person, other than essential or legal parties, who has some
connection with or knowledge of the child and family situation as it relates to the
case review.
1.12 Legal Party: Those parties with legal standing before the Juvenile Court.
1.13 Next Review Due Date: The date by which the next periodic review (Court or
CRB) is required by federal law.
1.14 Paper Move: A process by which the branch requests the CRB to delay
scheduling of the case review and hold the paper (Case Plan and supporting
documents) because there is a scheduled court hearing that is expected to meet
the requirements for periodic review and there is reason to believe the court will
relieve the CRB of its responsibility to review.
1.15 Request for Information: A notice from CRB to DHS indicating the CRB has
preliminarily scheduled a dependency case for case review, and requesting that
DHS respond with the Case Plan and supporting documents or an explanation,
with supporting documentation, that the review is not required by federal law.
1.16 Substitute Care: A child in the legal or physical custody and care of the
Department, including those supervised by another agency and placed in a paid
or unpaid out-of-home placement, including but not limited to foster or relative
placements, group homes, permanent foster care, emergency shelters,
residential facilities, non-finalized adoptive placements, subsidized independent
living, accredited psychiatric facilities, secure adolescent inpatient programs and
secure children's inpatient programs.
2
DAP - Appendix 8.b
2
3.
ISSUES OFGENERAL APPLICATION
2.1
CRB and DHS agree to meet no less than twice per year to address issues of
mutual interest, such as successes, concerns, training needs, trends in child
welfare, and advocacy opportunities.
2.2
DHS will assist the CRB, when requested, in recruitment of board volunteers by
making recommendations of potential board members to CRB field staff
whenever possible.
2.3
CRB and DHS will endeavor to address any future concerns or needs that may
arise regarding the subject matter of this Memorandum of Understanding on an
as-needed basis and at local levels, when appropriate. However, CRB and DHS
acknowledge recommended or desired changes to protocols, even at local
levels, must receive the approval necessary or required by the policies and
practices of CRB and DHS policy before such changes are implemented.
2.4
CRB and DHS acknowledge that it is important to provide local courts with a
balanced perspective regarding the processes by which CRB reviews are
conducted. Therefore, CRB and DHS will each include the other as a participant
in meetings with the local courts in which CRB Review policies and/or
procedures are anticipated to be discussed.
2.5
CRB and DHS will share training they provide to staff and volunteers of their
respective programs to promote understanding of practice and improve the
review system.
BEFORE THE REVIEW
3.1
CRB and DHS agree that reviews will not be scheduled and will be set over to
the following month by the CRB if the completed "Request for Information" (CRB
Form 700) and current Case Plan are not received in the CRB office by 5 p.m.
the 21 st day prior to the scheduled review date.
3.2
21 days prior to any scheduled review, DHS will provide CRB a completed
"Request for Information" for each matter to be reviewed. When DHS transmits to
CRB each completed "Request for Information", DHS will include its
recommendation of other interested parties, including any recommended by
CRB.
3.3
CRB will provide written notice to parties listed on each completed "Request for
Information" at least 15 days prior to the scheduled review.
3.4
If, after its receipt of a completed Request for Information, the CRB learns of a
party requesting to be heard and who is not listed on the Request for Information,
CRB will notify DHS of the party's request. CRB will consider hearing from
interested parties not listed on the Request for Information as allowed by the
Supreme Court Operating Rules for Local Citizen Review Boards.
3
DAP - Appendix 8.b
3.5
CRB schedules initial reviews for a minimum of 40 minutes and subsequent
reviews for a minimum of 25 minutes. If DHS believes a matter requires
additional time for a review, it will indicate that belief on the Request for
Information completed by DHS for that matter.
3.6
If DHS is aware of special circumstances at the time it transmits a completed
Request for Information in a particular matter, DHS should include the
information related to those circumstances at that time. If either CRB or DHS
become aware of special circumstances with respect to a particular matter within
21 days of a scheduled review, each will alert the other of those circumstances
by telephoning the appropriate person within CRB or DHS.
3.7
DHS will notify the CRB if an interpreter is needed on the Request for
Information; CRB will arrange for an interpreter. If an interpreter is needed, but
not requested by DHS, the board will continue the review until an interpreter can
be scheduled.
3.8
If DHS intends to request court relief in a particular matter because the court
hearing will be prior to the review due date, it will submit a request for a paper
move with a completed Request for information and the current case plan 21
days prior to the scheduled CRB review.
3.9
DHS will submit to CRB the following material with the Request for Information
and the current Case Plan, as available, to be received by the CRB no later than
21 days prior to each review:
3.9.1 For matters receiving their first CRB review:
3.9.1.1 Petitions and Court Orders
3.9.1.2 Action Agreements and Family Support Service Agreements
3.9.1.3 Assessments and/or evaluations (both children and parents)
3.9.1.4 ICWA inquiry
3.9.1.5 ICPC Report
3.9.1.6 CASA report
3.9.1.7 Service History
3.9.2 For matters which have been previously reviewed:
3.9.2.1 Any of the items listed above, as applicable, and created in the
period under review.
3.9.2.2 Additional material requested by the board at a previous review for
which the need to review the material has been documented.
4
DAP - Appendix 8.b
3.10 CRB and DHS acknowledge that parties may more fully and meaningfully
participate in case reviews when they are provided the opportunity to review
relevant materials prior to attending reviews in which they have an interest. To
achieve that level of participation, DHS will send copies of the Case Plan to
parents, parent's attorneys, child's attorneys and CASAs for receipt prior to the
CRB review.
3.11
4.
Due to confidentiality requirements, the CRB does not wish to receive information
regarding the HIV status of parents and children; DHS agrees NOT to include
this information in reports and other materials submitted to the board.
AT THE REVIEW
4.1
DHS will attend scheduled CRB reviews. The case-carrying worker is expected
to attend; if he/she cannot attend, a knowledgeable substitute worker or
supervisor will attend. Supervisors may attend any review. If the case has
another worker, such as an adoption worker, ICPC worker or courtesy worker,
that worker should also participate in the review.
4.2
DHS agrees that workers will bring the current volume of the case file to the CRB
review, if the file is available.
4.3
CRB will encourage an open forum while discussing and reviewing a case. If a
party wishes to speak privately with the board, or provides written information to
the board, or the board wishes to speak privately with the party, the CRB may
consider that information in making a decision. In making a finding or
recommendation, CRB will disclose the information upon which it relied as
required by the CRB Program policy and procedure.
4.4
CRB will make the Findings and Recommendations verbally at the review when
all parties are present, unless CRB, in its sole discretion, finds it impracticable.
4.5
CRB will identify those recommendations that are not within the authority or
ability of DHS to implement and CRB agrees to direct issues of general concern
(for example, resource needs) to the appropriate forum.
4.6
CRB and DHS acknowledge that the children and families whose cases are
undergoing review will be best served by a joint effort by CRB and DHS to
maintain the focus of the proceedings on issues germane to the achievement of
the safety, well-being, and permanent plan for the children under review.
4.7
CRB agrees to grant continuances only under the following circumstances:
4.7.1 The tribe with standing in the case was not notified.
4.7.2 There is a need for an interpreter and one is not available.
4.7.3 The board is unable to make its required findings.
5
DAP - Appendix 8.b
4.8
CRB and DHS will make every effort to avoid the necessity for continuances.
4.9
CRB and DHS agree that the time of the parties to the case is valuable. As such
the CRB will attempt to schedule early reviews only in the following
circumstances:
4.9.1 By order of the Juvenile Court
4.9.2 Upon request by a person with legal standing in the case.
4.9.3 Upon recommendation by the board, at a regularly scheduled review,
when there is a material concern regarding the permanency outcome and
there is cause to believe that an early review will advance the permanency
plan. Such a request will be documented in the Findings and
Recommendations document.
4.10 Before scheduling an early review under 4.9.2 or 4.9.3, CRB field staff will review
the request with the DHS Supervisor to determine if the material concern has
been addressed and whether an early review continues to be warranted.
4.11
CRB will not schedule early reviews to address the following:
4.11.1 Issues pertaining to criminal charges pending or decided. These issues
are to be resolved in the court.
4.11.2 Issues pertaining to caseworker supervision issues. Boards are
encouraged to resolve these issues by direct contact with the worker's
supervisor.
5.
AFTER THE REVIEW
When the CRB receives a written response from DHS to a CRB Finding or
Recommendation, the board will discuss the response at its next regular meeting date.
The DHS response, along with the action taken by the board, will be forwarded to the
court, DHS, and interested parties within fourteen (14) days of the board's review of the
response.
6.
TITLE IV-E COST REPORTING
6.1
Purpose:
This Memorandum of Understanding establishes a procedure for CRB to report
to DHS the CRB expenditures that qualify for Federal Financial Participation
under Title IV-E. These CRB expenditures shall include costs associated with
administering and conducting foster care administrative reviews and Title IV-E
Training. DHS will include CRB's Title IV-E costs in DHS's cost allocation
process.
6.2
CRB Responsibilities:
6
DAP - Appendix 8.b
6.2.1 CRB will provide, to DHS's General Accounting Unit, quarterly reports on
CRB's Title IV-E costs.
6.2.2 CRB will not report any expenditure that has been included in any other
Federal reimbursement or matching funds claim.
6.2.3 CRB shall be responsible for repayment of any Title IV-E funds received
by CRB that are the result of CRB Title IV-E costs disallowed as a direct
result of a federal or state audit of CRB financial records.
6.2.4 CRB will report quarterly to DHS the number of DHS children reviewed.
6.3
DHS Responsibilities:
6.3.1 DHS will include CRB's Title IV-E costs in DHS's cost allocation process.
DHS's cost allocation process culminates in the filing of the Title IV-E-12
report to claim federal IV-E funds.
6.3.2 DHS reserves the right to withhold the CRB related costs from the federal
claim if and only if the CRB Title IV-E claim will result in a loss of the Title
IV-B transfer authority. DHS shall notify CRB within five (5) days of DHS's
receipt of information which could reasonably indicate that DHS would
withhold CRB Title IV-E costs.
6.4
Joint Responsibilities:
6.4.1 CRB and DHS will cooperate in identifying which CRB expenditures are
allowable IV-E costs. (Some examples of costs that are not allowable IV-E
costs are: any interest expenses; mass transit taxes; and, capital
expenditures greater than $5,000.)
6.4.2 All funds realized by DHS, from claiming CRB allowable IV-E costs, will be
transferred to CRB. CRB will treat the transaction as a "transfer in" for
Department of Administration accounting purposes, and DHS will treat the
transaction as a "transfer out" for accounting purposes. CRB will deposit
such funds to the credit of the State of Oregon's General Funds.
6.4.3 The Oregon Judicial Department, on behalf of CRB, and DHS agree to
engage in subsequent discussions concerning possible uses of state
general funds that may become available for allocation by the legislature
or the legislative Emergency Board in the event that the Title IV-E funds
being sought under this Memorandum of Understanding are received by
CRB.
7
DAP - Appendix 8.b
7.
JOINT DEVELOPMENT OF ELECTRONIC INFORMATION SHARING SYSTEMS
7.1
CRB and DHS agree that collaboration in data sharing is paramount in improving
permanency outcomes and is consistent with 1.1 of this agreement.
7.2
CRB and DHS agree to work collaboratively on planning and implementing
changes in case management systems and electronic content management
within their respective organizations and will work to ensure compatibility for
sharing information.
The parties understand that this MOU is not legally binding on them. Rather, it is designed to
reflect an understanding of the way in which they may successfully cooperate to provide
effective and efficient case review of foster care in Oregon. Nothing in the MOU restricts any
party from exercising independent judgment or discretion given it under applicable statutes,
regulations, or other sources.
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AGR
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By:-64;.,.aL767e!:::£::l...£l<~~~~~==--_­
Date: .3 ~6
Name: Alex Aikman
Title: Director OJD Court Programs &
Services Division
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: DC;!~~ Human Services
Date~
Name: Erinn Kelley-Siel
Title: Interim Director for Children Adults and
Families, Department of Human Services
LDP:gII/L4G08017
8
DAG – Appendix 9
Summary and Guidance on Compliance
With 42 CFR, Part 2
(Federal Regulations regarding Alcohol & Drug Records)
The Federal Alcohol and Drug Confidentiality law is 42 CFR, Part 2. The laws
around A&D confidentiality are specific and more restrictive than HIPAA laws
about regular health and medical records. For the most part 42 CFR is simple.
Among other things, DHS child welfare MAY NOT forward protected alcohol and
drug information to any other party's attorney solely for the purpose of discovery,
unless that disclosure is authorized by the client or by court order. This has been
confirmed in many discussions with CAF Attorney Generals (AGs). This law can
slow things down a bit and make the process more cumbersome - but it's also
been the foundation for people to participate successfully in treatment for over 30
years. We can get the information where it needs to be - with proper attention
paid to the rights of all.
With regard to the attorneys representing DHS, the AG "works for us" and is our
attorney. When a caseworker forwards DHS child welfare records to an AAG it is
understood the records will be kept within the confines of internal
communications and the attorney-client relationship and not be re-released for
discovery, or any other purpose, without either a signed authorization or a court
order. At that point the AAG is responsible for complying with the Federal law
and, if necessary, the AAG may seek a court order that would require and
authorize disclosure to other parties in the proceeding.
However, the local District Attorney or defense attorneys are NOT our attorneys
and no DHS employee should be forwarding any protected A&D information to a
DA without either a signed authorization (release) that clearly specifies the DA
and the purpose of the release, or a signed court order. A subpoena IS NOT
enough to share A&D treatment records. The DA may want all the A&D info but
we MAY NOT forward the info. If they insist, refer them to an AAG. The AAG
has expressed a strong willingness to have these conversations locally. Some
things to keep in mind:
•
•
•
•
42 CFR supersedes HIPAA because it is more specific and restrictive in
its coverage.
42 CFR forbids sharing of A&D treatment record info for discovery or
based on a subpoena. A court order or signed authorization is required.
42 CFR is specifically about A&D treatment program records. It does not
cover every piece of A&D information you have from family members or
other parties in the case.
Drug testing and results that DHS provides as a service, with DHS money,
at a local collection site, not administered through a treatment program,
•
•
are DHS records. Those drug tests ARE NOT covered by 42 CFR.
Drug test results that A&D treatment programs provide are covered by 42
CFR.
No, you may not read a treatment file, re-summarize it and then forward
the summary of protected information on with the file. The
INFORMATION is protected, not just the information that is on treatment
program letterhead. So the law about re-release applies to written and
oral releases.
In cases where there is no client signed authorization and you really need
information to move to key people to have the court understand the safety
concerns of a case, you have to be clear with the court, without violating the law.
The statement listed below is offered for written or verbal use to clarify the
position you may find yourself in from time to time. The court then knows you
haven't just made things up, but rather, you are legally prohibited from sharing.
Then the court can decide to get the information via an order or not, or the DA
can ask for a court order ahead of time. You may feel this is an unneeded, time
consuming and frustrating extra step or two - but it is Federal law.
•
"The decisions made, actions taken, and position presented to the
court by DHS child welfare regarding the safety of this child(ren)
have been made in part based on information that cannot be
forwarded at this time in order to keep the department in compliance
with Federal Law prohibiting the re-release of protected alcohol and
drug information. The re-release of this information would require a
signed authorization or court order in compliance with 42 CFR part 2,
neither of which the department has at this time."
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