2.1A.3. CAPTA, Assurances and Requirements, Access to Child Abuse and Neglect Information, Open courts

Answer

No. The 2003 amendments to CAPTA specifically give States the flexibility to determine State policies with respect to open courts, so long as such policies ensure the safety and well-being of the child, parents and families (last paragraph of section 106(b)(2)). There may be other Federal confidentiality restrictions for the State to consider when implementing this CAPTA provision.

Source/Date

ACYF-NCCAN-PIQ-97-01 (3/4/97); updated 3/22/06

Legal and Related References

Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) - section 106(b)(2); Titles IV-E and IV-B of the Social Security Act

Answer

Yes. The purpose of the confidentiality provision is to protect the privacy rights of individuals receiving services or assistance under this program and to assure that confidential information is not disclosed to unauthorized recipients. Although, under CAPTA, confidential information may be shared with the courts, there is no provision which allows for public disclosure of such information except in cases of child abuse or neglect that result in the death or near death of a child. The confidentiality requirements of CAPTA do not prohibit open courts per se. However, to the extent that the proceedings involve discussion of confidential information from the child abuse and neglect report and record, the confidentiality requirements apply. Accordingly, such information cannot be discussed in a public forum, including an open court. To the extent that confidential information is relevant to the proceedings, it must be discussed in the court's chambers or some other restricted setting, and the pertinent sections of the transcript must be kept confidential as well.

Violation of the Federal confidentiality provisions is a State plan compliance issue under CAPTA.

Source/Date

ACYF-CB-PIQ-98-01 (6/29/98)

Legal and Related References

Social Security Act - section 471 (a)(8); Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) - section 106; 45 CFR 205.50; 45 CFR 1355.21 (a)

Answer

The "open courts" provision in CAPTA applies to court proceedings that determine whether child abuse and neglect has occurred. However, section 471(c) of the Social Security Act permits States to provide the public with access to court proceedings that determine child abuse and neglect, or other court hearings held pursuant to titles IV-B or IV-E. In doing so, States must at a minimum, ensure the safety and well-being of the child, parents and family. Since this later-enacted law allows open courts in a broader range of court proceedings, a State may allow open courts in any of the proceedings authorized by section 471(c) of the Act and not be considered out of compliance with CAPTA.

Finally, States also should ensure that they are complying with any other relevant State or Federal confidentiality laws. In particular, entities that are subject to the Health Insurance Portability and Accountability Act of 1996 (HIPAA) must ensure that they do not disclose confidential information in violation of HIPAA?s privacy regulations. ^*

^{* For more detailed information about the circumstances under which State agencies or other covered entities can disclose confidential information under HIPAA's privacy regulations, contact the U.S. Department of Health and Human Services' Office for Civil Rights or the State Attorney General's Office.}

Source/Date

10/24/2006

Legal and Related References

Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) § section 106(b)(2); Social Security Act § section 471(c)