2009 Louisiana Laws TITLE 46 Public welfare and assistance :: RS 46:56 Applications and client case records; definitions; confidentiality; waiver; penalty

§56.  Applications and client case records; definitions; confidentiality; waiver; penalty

A.  Applications for assistance and information contained in case records of clients of the Department of Health and Hospitals, the Department of Social Services, or the Office of Elderly Affairs, for the purpose of adult protective services, shall be confidential and, except as otherwise provided, it shall be unlawful for any person to solicit, disclose, receive, make use of, or to authorize, knowingly permit, participate in, or acquiesce in the use of applications or client case records or the information contained therein for any purpose not directly connected with the administration of the programs of the department.

B.(1)  For the purposes of this Section, "department" means the Department of Health and Hospitals, the Department of Social Services, and the adult protection agency as provided in R.S. 14:403.2(B)(3).  It is the express intent of this Section that the Department of Health and Hospitals, the Department of Social Services, and, for the purpose of adult protective services, the Office of Elderly Affairs share access to each other's case records to the extent that such access is not prohibited by any contrary provision of federal law or regulation.

(2)  For the purposes of this Section, "case records" are assistance records, social service records, food stamp records, medical services records, probation and parole records, records pertaining to the adoption of children, records of foster care services, records and investigative reports on abuse or neglect of children or adults, and records of other child welfare services administered by the department, including handicapped children's services, nutrition, immunization, and other medical and public health services records pertaining to children or adults and where such records are in the custody of parish health units, and regional and central offices of the office of public health of the Department of Health and Hospitals.

(3)  Notwithstanding any provision of law to the contrary, including but not limited to the provisions of this Section, all offices, bureaus, and agencies within the Department of Social Services are hereby expressly authorized to share access to each other's case records as necessary for the administration of their respective programs, except as prohibited by federal law or regulation.

C.  Publication of lists or names of clients or applicants is prohibited, except as provided in this Section.

D.  Subject to the exceptions enumerated in R.S. 44:17 and Subsections E, F, and M of this Section, confidential information may be released to an outside source not directly connected with the administration of the programs of the department only upon written request of the outside source and only after written waiver by the applicant, client, or his legal representative.  Governmental authorities, the courts, and law enforcement agencies shall be considered the same as any other outside source, except as provided in R.S. 44:17 and Subsections E and F.

E.(1)  Upon request of any authorized person, the most recent address and place of employment of any absent parent shall be provided if such information is available, notwithstanding any other provisions of this Section.  For the purposes of this Subsection, the term "authorized person" shall mean:

(a)  Any agent or attorney of any state agency which has the duty or authority to seek to recover any amounts owed as child support;

(b)  Any court of competent jurisdiction which has authority to issue an order against an absent parent for the support and maintenance of a child, or any agency of such court; and

(c)  Any resident parent, legal guardian, attorney, or agent of any child, except a child currently receiving aid to dependent children, without regard to the existence of any court order against an absent parent who has a duty to support and maintain any such child.

(2)  Information of the department pertaining to financial assistance programs may be released in accordance with the federal laws and regulations governing the release of information of the financial assistance programs.

F.  The following information shall not be subject to waiver and shall not be released to applicants, recipients, or outside sources, except those outside sources engaged in the administration of the programs of the department:

(1)  Records pertaining to foster care of children, investigations of abuse and neglect of children, and other child welfare services.  For the purposes of this Paragraph, case records of children in abuse and neglect and foster care cases may be reviewed by attorneys who are appointed by a court of juvenile jurisdiction to represent the sole interest of the children, and pursuant to court order, such case records may be reviewed by court-appointed special advocates appointed pursuant to Ch.C. Art. 424(D).  Prior to a court hearing, the department may provide to such attorneys and court-appointed special advocates copies of the most recent case plan for the child and his family, the most recent court order and court report, and the child's most recent medical report.  Additionally, pursuant to Article 616 of the Children's Code, a judge of a court exercising juvenile jurisdiction may request, in writing to the department, central registry record checks.  However, in no instance shall the name or identifying information regarding a complainant in neglect and abuse cases or the case records of the foster parents be subject to such review.  The department may, however, provide foster parents all information from the department's records and from other records to which the department has access concerning a child in the foster home, and concerning the child's family, where such information is necessary for the foster parents to properly care for the child.  The department may also provide surrogate parents representing the special education interests of children in the department's custody with all information from the department's records and from other records to which the department has access where such information is necessary for the surrogate parents to properly advocate for the children.  In any child custody proceeding, after the issue has been raised of the potential existence of a relevant departmental record concerning the abuse or neglect of a child who is the subject of that proceeding, the judge may contact the local child protection unit to determine if such a record exists.  If a determination has been made that such report appears justified pursuant to Ch.C. Art. 615(B)(1) through (3), the local child protection unit shall verbally advise the judge that such report is in the possession of the unit.  If the court finds that information which may be contained in the report is necessary for an issue before the court, the court may order the release of such information.  If a determination was made that such report was unjustified or inherently improbable, such records shall be sealed and accessible only pursuant to Ch.C. Art. 616(A)(2).

(2)  Information furnished to the department by persons, governmental agencies, or other legal entities when such furnisher of information is subject to a confidentiality statute or regulation which prohibits release of such information to an outside source, and

(3)  Information contained in applications for assistance and case records that is furnished to law enforcement agencies or courts to aid in the prosecution of criminal offenses related to any program.

(4)(a)  For the purpose of this Subsection, those outside sources engaged in the administration of the programs of the department pertaining to child welfare services shall be local child service agencies, including but not limited to hospitals, clinics, schools, and counterpart agencies in other states engaged in delivering family and children's services; local, state, and federal law enforcement agencies, including but not limited to military authorities, probation officers, district attorneys, and coroners; the Louisiana State Board of Dentistry; and the Louisiana State Board of Medical Examiners.  The department may release information to a child abuse citizens' review panel or a state child fatality review panel only to the extent that the requested information is consistent with the purpose of the requesting panel as provided by state law or regulation.  Information may be released by the department only to an agency engaged in rendering services or treatment to a recipient or former recipient of the department's services and only for the purpose of furthering the services or treatment; or to an agency engaged in enforcing or prosecuting violators of the child abuse and neglect law or perpetrators of acts against children in violation of the criminal statutes of this state or of another state or of federal criminal statutes. The requesting agency shall request the information in writing and state the purpose for which the information is being requested.

(b)  In addition, the department may release information to other agencies of state government that are engaged in rendering services or treatment to a department recipient or former recipient.  The agency receiving the information from the department under this Paragraph shall be bound by the same confidentiality standard as prescribed in this Section with regard to release of this information to the recipient, the client's legal representative, or an outside source.  The Department of Health and Hospitals, the Department of Social Services, and, for the purpose of adult protective services, the Office of Elderly Affairs may release information to each other for the purpose of furthering services or treatment to clients or recipients of services of either department.  Information subject to release under this Section that is covered by federal statutes or regulations restricting release of the information shall be released only in accordance with the federal statutes or regulations.

(c)  Following any investigation by the department of a public or private day care center, registered family child day care home, or residential provider, the department may inform the parent or guardian of any child being cared for at the center, home, or residence or the parent or guardian of any child who has applied for placement in the center, home, or residence of a valid finding of child abuse, neglect, or exploitation occurring at the center, home, or residence upon the request of the parent or legal guardian.  The department may also advise such parent or legal guardian of a valid finding when it becomes necessary for the department to take adverse action against a center, home, or facility in the interest of the safety and welfare of the children.  The department may release to the Department of Education limited information concerning a valid finding of child abuse, neglect, or exploitation occurring at a family child day care home that is registered by that department.  These circumstances shall constitute authorized disclosures under the provisions of R.S. 14:403(A)(2).

(5)(a)  The department may release the information described in Paragraph (1), except names and any other identifying information, to a professional person or professor or graduate student of a college or university who is engaged in bona fide professional, academic, or scholarly research in the field of child welfare services or to a duly authorized person conducting an audit of the department.

(b)  Upon written approval of the department and of the child through his representative, when required by federal law, the information described in Paragraph (1) may be released, including names and other identifying information, except identifying information regarding complainants in neglect and abuse cases, to researchers whose proposed research in the field of child welfare services has been reviewed and approved by an institutional review board confected in accordance with and operating under the standards provided for in the United States Department of Health and Human Services' Policy for the Protection of Human Subjects, provided that access to that information is essential to the research.  The researcher shall furnish to the department a written certification from the institutional review board confirming the board's compliance with the applicable standards and its review and approval of the research consistent with those standards.  The certification shall also describe the board's future oversight responsibilities and specific procedures for assuring that the confidentiality of identifying information is strictly preserved.  The department is authorized to develop a standardized certification form and other procedures as needed to facilitate its review and authorization of research requests consistent with its child welfare administrative responsibilities under state and federal law.

(c)  The person receiving the information from the department under this Paragraph shall be bound by the same confidentiality standard and subject to the same penalties for improper disclosure as prescribed in this Section with regard to release of this information to the recipient, the client's legal representative, or an outside source.  Any paper, report, thesis, dissertation, or other document resulting in whole or in part from the research or audit shall not contain the name or any identifying information regarding an applicant, recipient, or client, or other person to whom the records pertain.

(6)  Research proposals which request access to clients or former clients of the department may be approved, but only after a determination that the following criteria are met:

(a)  Contact with the client and the nature of the research will not have a detrimental effect on the client;

(b)  The client or his legal guardian has consented in writing to such research; and

(c)  The research will be of value to the department.

(7)(a)  The department may release, upon written request, the information described in Paragraph (1) of this Subsection to the former foster child or his legal tutor if in its discretion it believes the release of such information to be in the best interest of the former foster child.  Such information shall not include any information regarding the identity of the birth parents or birth siblings of a former foster child who was subsequently adopted or any information regarding the identity of the reporter in a case of abuse or neglect.

(b)  The department, upon written request, shall release to a former foster child or his legal tutor, non-identifying medical or genetic information that may be contained in any record maintained by the department without the necessity of filing a petition for disclosure from the department as required by the provisions of Chapter 5 of Title XII of the Children's Code.

(8)(a)  Case records involving investigation of reports of child abuse and neglect shall be confidential in order to protect the rights of the child and his parents or guardians.  Information contained in such records shall only be made available as provided in this Section or applicable state or federal laws or regulations.

(b)  The department shall not disclose identifying information concerning an individual who initiated a report or complaint of alleged child abuse or neglect, except that the department shall disclose such information pursuant to a court order after such court has reviewed, in camera, the department's case record and finds reason to believe that the reporter knowingly made a false report.

(9)  Notwithstanding any other provision of this Section, limited public disclosure of summary information contained in the child abuse or neglect records of the Department of Social Services may be made as follows:

(a)  When there has been a child fatality or near fatality in which abuse or neglect was medically determined by an examining physician to be a contributing factor in the cause of death or near fatality.  For purposes of this Paragraph, "near fatality" means an act as certified by the physician who examined the child which placed the child in serious or critical condition.

(b)  To confirm, clarify, or correct information concerning a case of child abuse or neglect not involving a child fatality, or near fatality that has been made public by sources outside the department.  Any release of information shall be made in a manner respectful of the parties' right to privacy and be specifically limited to the information already made public.

(c)  To the individual who initiated the report if that individual is a mandatory reporter as defined by Article 603(13) of the Children's Code.  The person receiving the information under this Subparagraph shall be bound by the confidentiality standard and subject to the penalties for improper disclosure, as prescribed in this Section.

(d)  This Paragraph shall not apply when the local district attorney requests that certain information not be released due to its potential to compromise a pending criminal investigation or prosecution or when, in the judgment of the department, disclosure may compromise the integrity of a child protection investigation.  However, all information, including but not limited to the departmental case records, shall be available to the local district attorney for inspection.

(e)  The department shall not publicly disclose any information concerning the individual initiating a report or complaint.

(f)  Notwithstanding any other provision of this Paragraph, the confidentiality of the department's records shall be maintained by the department as required by federal law as a condition of the allocation of federal monies to the state.

(g)  Nothing in this Paragraph shall limit the authority of the department to disclose requested information to the parent or guardian of an abused or neglected child as otherwise provided by law.

(h)  Notwithstanding the provisions of Subsection B of this Section, references in this Paragraph to the term "department" shall only mean the Department of Social Services.

(10)(a)  Upon written request, the department shall disclose limited information contained in child abuse or neglect records or reports to the following:

(i)  An examining physician of a child whom he reasonably believes has been abused or neglected.

(ii)  A committee or subcommittee of the legislature which has subject matter jurisdiction over child protection legislation according to the rules of the respective house, provided that such information is reviewed in closed session and kept confidential.

(iii)  The executive director of a day care center or residential provider, provided that the use of such information is limited to a confidential employee disciplinary investigation of alleged abuse or neglect of a child within that facility and the employee who is the subject of the disciplinary investigation is the subject of the requested information. However, the department shall have the authority to fine, revoke, or suspend the license of any day care center or residential provider, after due notice and a hearing, if the executive director releases the confidential information to an unauthorized person or persons. The proceedings shall be conducted in accordance with rules and regulations to be promulgated by the department.

(iv)  The attorney who represents the child, the day care center, or an employee of the day care center.

(b)  The information disclosed pursuant to this Paragraph shall be limited to the following:

(i)  Whether or not the department has a report, which has been determined to be justified pursuant to Article 615 of the Children's Code, in its possession concerning the child or person who is the subject of the information request.

(ii)  The status of the investigation, the determination made by the department, and any action taken by the department.

(c)  Nothing in this Paragraph shall authorize release of any information concerning an individual initiating a report or complaint of abuse or neglect or authorize access to any information which is prohibited by federal law.

(11)  Upon written request of a caregiver, the department shall disclose limited information contained in child abuse or neglect records or reports to an employer or prospective employer of a person who will be exercising supervisory authority over that employer's minor children or other dependent person as part of that person’s employment as a caregiver. The information disclosed pursuant to this Paragraph shall be limited to cases in which the department has determined that the allegations from which such information has been developed are justified pursuant to Article 615 of the Children's Code.  The provisions of this Paragraph shall not be interpreted to authorize the release of or access to any information protected under federal law.

(12)(a)  Notwithstanding any other provision of this Section, including without limitation Subsection K or of any other law to the contrary, the department shall disclose case records involving an investigation of a report of child abuse or neglect to an immediate family member who initiated the report or complaint of alleged child abuse or neglect when the child who was the subject of the report or complaint died and abuse or neglect was medically determined by an examining physician or a coroner to be a contributing factor in the cause of death.  For the purposes of this Paragraph, "immediate family member" means the child's parent or grandparent; however, if any such person is the accused abuser of the child, such person shall not be considered to be an immediate family member for the purposes of this Paragraph.

(b)  Any immediate family member who requests and receives the case record involving an investigation of a report of child abuse or neglect shall agree in writing to hold the department harmless for any damages, special or general, which may result from the information contained in the case record of the investigation.

G.  Notwithstanding any other provision of this Section, information pertaining to adoption of children shall be strictly confidential and shall only be released to courts of competent jurisdiction in accordance with existing laws.

H.(1)  Information pertaining to foster care of children, reports and investigations on abuse or neglect of children, and records of other child welfare services administered by the department, including but not limited to handicapped children's services, nutrition, immunization, and other medical and public health services records pertaining to children and where such records are in the custody of parish health units or regional and central offices of the office of public health of the Department of Health and Hospitals, shall not be subject to discovery or subpoena in any civil suit in which the department is not a party.

(2)  In the event of the issuance of a subpoena or subpoena duces tecum served upon the custodian of case records or other qualified witness or employee of the department in a civil action in which the department is not a party, or in any criminal proceeding, and such subpoena requires production for trial or discovery of any or all of the department's records, it shall be sufficient compliance if the custodian or other qualified employee delivers by registered mail or by hand a true and correct copy of all records described in such subpoena to the clerk of court or other tribunal, together with an affidavit of their authenticity, to be sealed by the court and made available only to the litigants, after an in camera inspection by the court for a determination of relevance and/or discoverability, who shall be bound by the limits of confidentiality.  Under no circumstances shall said production include the name of any confidential informant, in accordance with R.S. 14:403(B).  Production of said records as described in this Section shall be deemed timely if made any time prior to the requested date or date of trial, provided that the subpoena duces tecum is served at least five days prior to the requested date or date of trial.

(3)  No subpoena for testimony shall issue to any employee or representative of the department in such a civil suit if the department's records are available for production pursuant to R.S. 46:56(H)(2).  If the court, after the in camera inspection of the department's records as described in R.S. 46:56(H)(2), determines that good cause exists for testimony by a department employee or representative, said employee or representative may be permitted to testify in chambers.

I.  Any person who violates any of the provisions of this Section shall be fined not more than two thousand five hundred dollars or imprisoned for not more than two years in the parish jail, or both, nor less than five hundred dollars or ninety days on each count.

J.  Notwithstanding the foregoing provisions of this Section, the department shall maintain in each parish or district office a current monthly roster or listing by category of recipients of public assistance showing the names and amounts received by each.  Said roster shall not contain information pertaining to food stamps or the Medicaid Program (Title XIX of the Social Security Act).  This roster shall be kept available in the reception room or some conspicuous place during regular office hours of each parish office, to any person wishing to view the contents.  The department shall supply the parish or district offices with forms, one of which shall be filled out, dated, and signed by each person wishing to avail himself of the provisions of this Subsection.  However, it shall be unlawful to use its contents for political or commercial purposes.

K.  Notwithstanding the foregoing provisions of this Section, this Section shall not be construed in any manner inconsistent with the provisions enumerated in Ch.C. Article 616.

L.  Notwithstanding the foregoing provisions of this Section, in any hearing before the State Civil Service Commission, Equal Employment Opportunity Commission, and any office in the Louisiana Workforce Commission in its capacity of administering Louisiana Employment Security Law, or in any civil or criminal judicial proceeding, wherein the work performance or conduct of an employee of the department is at issue, client case records relevant to said work performance or conduct shall be admissible.  However, prior to admission into evidence, the client case records shall have client names and identifying data obliterated.  The department shall provide to the employee the relevant case records with names and other identifying data obliterated, except that where an employee is disciplined as a result of allegations made by the guardian, parents, family members, or tutor of the client, the names of the accuser shall not be withheld so as to deny the employee the right of confrontation granted to him by the constitution and laws of the United States of America and the state of Louisiana.

M.(1)  Notwithstanding the foregoing provisions of this Section, payment histories on child or spousal support obligations maintained by the department in conformity with the provisions of Title IV-D of the Social Security Act or by the department's support enforcement services program may be released to a consumer reporting agency upon its application in writing and payment of a fee covering the department's actual costs for duplicating, copying, or transmitting the information.  Payment histories shall not be released without the removal or obliteration of any confidential information contained therein, including but not restricted to the payee's address or receipt of Aid to Families with Dependent Children or other state assistance.

(2)  For purposes of this Subsection, "consumer reporting agency" means any person who, for monetary fees or dues or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers to furnish consumer reports to third parties and who uses any means or facility of interstate commerce to prepare or furnish consumer reports.

Acts 1992, No. 447, §4, eff. June 20, 1992; Acts 1993, No. 625, §1, eff. June 15, 1993; Acts 1993, No. 892, §1, eff. June 23, 1993; Acts 1995, No. 521, §3, eff. Jan. 1, 1996; Acts 1997, No. 79, §1; Acts 1997, No. 903, §1, eff. July 10, 1997; Acts 1997, No. 1129, §1, eff. July 14, 1997; Acts 1997, No. 1172, §7, eff. June 30, 1997; Acts 1997, No. 1463, §1; Acts 1999, No. 750, §1, eff. July 2, 1999; Acts 1999, No. 1217, §1, eff. July 9, 1999; Acts 1999, No. 1326, §1, eff. July 12, 1999; Acts 2001, No. 732, §1, eff. June 25, 2001; Acts 2003, No. 483, §1; Acts 2004, No. 260, §1, eff. June 15, 2004; Acts 2005, No. 333, §1, eff. June 30, 2005; Acts 2007, No. 119, §1, eff. June 25, 2007; Acts 2008, No. 743, §7, eff. July 1, 2008.