INITIAL STATEMENT OF REASONS

CONFIDENTIALITY OF RECORDS

INTRODUCTION

Title 5 California Code of Regulation [5 CCR] Section 18117(a) applies to all CDE early education and support contracting agencies, unless otherwise specified, and prohibits use or disclosure of any and all information pertaining to a child and his or her family to anyone for any purpose unless that use or disclosure is “directly connected with the administration of the program.” Similarly, 5 CCR Section 18246 applies specifically to resource and referral contracting agencies and prohibits use or disclosure of information pertaining to the child or the child’s family to purposes directly related to administration of the program. The reference to “the program” in these regulations is the Early Education and Support programs available to those families that are income eligible, recipients or former recipients of California Work Opportunity and Responsibility to Kids (CalWORKs), are homeless, or receiving child protective services. Thus, the regulations prohibit the sharing of any personally identifiable information on children and families unless the sharing is directly connected with administering these Early Education and Support programs. Although the regulations administering these programs are intended to pertain solely to the agency contractors that administer these Early Education and Support programs, the regulations are written somewhat vague in that they fail to specify that the prohibitions are applicable solely to the agency contractors, not to the California Department of Education (CDE) itself. Whether CDE can use or disclose information pertaining to a child and his or her family is dictated by California law and was not intended to be further restricted by 5 CCR regulations. Because 5 CCR Sections 18117(a) and 18246 do not clearly state in the regulations themselves that they apply solely to CDE’s contractors, and not to CDE, the public might be confused and contend that these regulations prevent CDE from using or disclosing information that it may otherwise lawfully be permitted to use or disclose under state law. It is important that these regulations be clarified so that it is clear that the regulations apply only to the CDE’s contractors who are the subject of the 5 CCR regulations.

PROBLEM AGENCY INTENDS TO ADDRESS

California law allows the CDE to be able to use and disclose personally identifiable information on children and families it serves through its Early Education and Support programs under certain circumstances. For example, the Information Practices Act, Civil Code Section 1798.24 et seq., allows state agencies to disclose personally identifiable information when such disclosure is required by state or federal law [Civil Code section 1798.24 (f)]. It also allows for disclosure of personally identifiable information on children and families to educational institutions and non-profit agencies headed by qualified researchers in order for scientific research to be performed. [Civil Code section 1798.24(t)]. Similarly, Welfare and Institutions Code Section 10850 sets forth confidentiality restrictions applicable to state agencies prohibiting disclosure of personal information related to anyone receiving public benefit assistance but carves out specific exceptions, including allowing state agencies to share personally identifiable information on benefit recipients as permitted by Civil Code Section 1798.24(t). Because of the lack of clarity in current regulation, the CDE is hesitant to share personally identifiable information on children and families participating in its Early Education and Support programs. This impacts potentially important scientific research projects that the CDE could otherwise participate in by sharing disaggregated data on children and families that participate in its Early Education and Support programs.

BENEFITS ANTICIPATED FROM REGULATORY ACTION

The benefit of enacting the proposed regulations will be to ensure that the regulations clearly reflect their intent to apply solely to contracted agencies and what information they are permitted to use and disclose as pertains to children and their families receiving services. It will benefit the CDE by allowing the CDE to comply with state law requirements without question as to the applicability of the 5 CCR regulations. It will also benefit the public by giving the CDE the reassurance that it could use or disclose data pursuant to appropriate exemptions in law, such as the exemption allowing for disclosing personally identifiable information for purposes of conducting scientific research, as permitted by Civil Code Section 1798.24(t).

SPECIFIC PURPOSE OF EACH SECTION – GOV. CODE SECTION 11346.2(b)(1)

The specific purpose of each adoption or amendment, and the rationale for the determination that each adoption or amendment is reasonably necessary to carry out the purpose of which it is proposed, together with a description of the public problem, administrative requirement, or other condition or circumstance that each adoption or amendment is intended to address, is as follows:

Proposed section 11817 is amended to add the words “held by the contractor.” This is necessary to clarify that the prohibition in the regulation pertains solely to the agency contractors and not to the information held by the CDE, which is intended to be governed solely by state law.

Proposed section 18246 is similarly amended to add the words “held by the contractor.” This is necessary to clarify that the prohibition in the regulation pertains solely to the contracting resource and referral agency and not to the information held by the CDE, which is intended to be governed solely by state law.

Economic Impact ASSESSMENT PER GOV. CODE SECTION 11346.3(b)

Purpose:

The proposed regulations are necessary solely for clarification.

Creation or Elimination of Jobs within the State of California:

There is no evidence the regulations will either create or eliminate jobs in within California as the regulations only impact the CDE and its ability to share information.

Creation of New or Elimination of Existing Businesses within the State of California:

There is no evidence the regulations will create new businesses or eliminate existing business within the State of California as the regulations only impact the CDE and its ability to share information.

Expansion of Businesses or Elimination of Businesses Currently Doing Business within the State of California:

There is no evidence the regulations will lead to the expansion or elimination of businesses currently doing business within the State of California as the regulations only impact the CDE and its ability to share information.

Benefits of the Regulations to the Health and Welfare of California Residents, Worker Safety, and the State’s Environment:

The proposed regulation will have no adverse effect nor benefit on worker safety or the State’s environment.

INCORPORATED BY REFERENCE

No documents are to be incorporated by reference

OTHER REQUIRED SHOWINGS

Studies, Reports or Documents Relied Upon – Gov. Code. Section 11346.2(b)(3):

The SSPI did not rely upon any technical, theoretical, or empirical studies, reports, or documents in proposing the adoption, amendment, or repeal of these regulations.

Reasonable Alternatives Considered or Agency’s Reasons for Rejecting Those Alternatives – Gov. Code Section 11346.2(b)(5)(A):

No other alternatives were presented to or considered by the SSPI.

Reasonable Alternatives thatWould Lessen the Impact on Small Businesses – Gov. Code Section 11346.2(b)(5)(B):

The SSPI has not identified any alternatives that would lessen any adverse impact on small business.

Evidence Relied Upon to Support the Initial Determination that the Regulations Will Not Have a Significant Adverse Economic Impact on Business – Gov. Code Section 11346.2(b)(5)(A):

The proposed regulations would not have a significant adverse economic impact on any business because they apply only to child development contractors and do not change their current practices in any way.

Analysis Of Whether the Regulations are an Efficient and Effective Means of Implementing the Law in the Least Burdensome Manner – Gov. Code Section 11346.3(e):

The proposed regulations have been determined to be the most efficient and effective means of implementing the law in the least burdensome manner.

An evaluation of the proposed regulations have determined they are not inconsistent/incompatible with existing regulations, pursuant to Gov. Section 11346.5(a)(3)(D).

04-20-17 [California Department of Education]

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