In an Effort to Avoid Duplication of Services and Provide Optimum Care, State Law (192.2415

In an effort to avoid duplication of services and provide optimum care, state law (192.2415, RSMo) requires that Adult Protective Community Workers (APCW) cooperate and coordinate with other agencies (state, public or private) in exchanging information. When doing so however, the APCW shall make every effort to protect the eligible adult's right to confidentiality as directed by state statute, the Health Insurance Portability and Accountability Act (HIPAA), and the Department of Health and Senior Services (DHSS) Administrative policies (Ref: 11.6, 11.27, 24.2).

The confidential nature of an investigation of an APS report shall not necessarily prohibit the release of general information regarding the results of an investigation. A general statement regarding the status of findings of a report may be released in a confidential manner to a reporter who later calls inquiring as to the results of a report, when information being given or exchanged between APCW and reporter is minimal, necessary and assists in our efforts to provide continued protective services for the reported adult. The APCS should be consulted if the APCW has questions pertaining to follow-up at the request of a reporter. In no instance shall this include names of witnesses or other information which is protected by confidentiality. Protected information shall include:

• written records or forms containing sensitive information such as case records;
• work-related information such as elder abuse information, reporter identity, and any information which if shared, would unnecessarily harm the reputation or interest of a member of the public;
• any information believed to be sensitive based on the judgment of the APCW.

The Authorization for Disclosure of Consumer Medical/Health Information (Authorization) shall be obtained from a requestor prior to releasing any protected health information contained in DHSS files to a requesting entity or person. A copy of the Authorization shall serve as documentation of what information was released and the purpose of the disclosure. The APCWs shall note the completion of this form in the Narrative Recordings and scan a copy of the Authorization for the electronic case file. All formal requests for information (especially when written) shall require the Adult Protective Community Supervisor’s (APCS) approval prior to release. When necessary, the Supervisor may request legal assistance through the Office of General Counsel (OGC).

Confidentiality of Reports

I. Eligible Adults

Information regarding an eligible adult being served by the Division of Senior & Disability Services (DSDS) and reports of abuse, neglect or exploitation shall be confidential and shall not be considered a public record. Identifying information (medical, social, personal or financial) of a reported adult shall not be disclosed unless court ordered. The law (Section 192.2435 and 192.2505 RSMo) allows examination and copying of reports by:

• DHSS or any person or agency designated by the department;
• the Attorney General;
• the Department of Mental Health (DMH) for persons referred to that department;
• any appropriate law enforcement agency;
• the reported adult or his/her guardian. This shall not be construed to include next of kin, responsible party, power of attorney, etc. unless the reported adult designates such person to have access to the record. Under a limited guardianship, the terms of the court’s letters appointing the limited guardian should be reviewed to determine if they are allowed access. It may, at times, extend to the personal representative of deceased reported adults or the reported adult's attorney;
• the Department of Social Services (DSS) for individuals who receive Medicaid benefits (see Policy 1701.30, 192.2500, RSMo). This only applies to information on an eligible adult being served by the division. The law does not allow DSS to copy or examine reports of abuse, neglect and exploitation.

When reports are released to the above, the reporter's name shall not be disclosed (see Policy 1701.30, 192.2435, RSMo) unless:

• authorized specifically by the reporter (either permission obtained in writing or reporter’s verbal consent documented in the Narrative Recordings); and ,
• DHSS determines disclosure is necessary to prevent further harm to an eligible adult.

Section 192.2505 RSMo protects the personally identifiable medical, social, personal and financial information of any eligible adult. Release of any individual identifiable and/or confidential information shall require Supervisory approval prior to disclosure.

II. In-Home Services participants and Consumer Directed Services (CDS) Consumers

Reports and records involving in-home services participants or CDS consumers shall be confidential and shall not be considered public record (192.2500 and 208.912.8, RSMo). In accordance with state law (192.2500, RSMo), names of any persons mentioned in the report shall not be disclosed unless:

• participants/consumers or other persons listed in the report agree to disclosure (either permission obtained in writing or reporter’s verbal consent documented in the Narrative Recordings).

• the department determines disclosure is warranted to prevent further abuse, neglect, misappropriation, or falsification of documents to an in-home services participant or CDS consumer.
• release of names is required in conformance to lawful subpoenas.
• release of names is required in connection with administrative hearing commission review (198.039, RSMo).
• the department determines that the release of names is appropriate when forwarding a report of findings of an investigation to a licensing authority.
• release of name is requested by the Family Support Division for the purpose of licensure under Chapter 210, RSMo.

Upon request, copies of an investigative report, which resulted in a person being placed on the Employment Disqualification List (EDL), shall be provided to the Division of Employment Security by the department director’s designee at OGC.

Reports regarding in-home services participants or CDS consumers may be released, with APCS approval, if the names of the reporter, all persons mentioned within the report, and all identifying information is deleted and the requestor has authorization to receive the reports (see Policy 1706.40 and 1706.50). If numbers are used to identify persons or the names mentioned in the report are blacked out, the confidentiality requirements regarding these reports have been met.

III. Public Administrators

The law does not provide for a Public Administrator (PA) to receive identifiable information of an individual from DHSS. However, 192.2505, RSMo allows DHSS to designate a person or agency to receive confidential information. Therefore, prior to discussion of a potential guardianship/conservatorship case with a PA, the APCW shall advise the PA that they are being designated to receive confidential information. Documentation of this verbal designation shall be made in the Narrative Recordings. When the PA refuses to accept a case, this documentation shall be sufficient.

On each case that the PA agrees to pursue guardianship/conservatorship, the Designation Letter (Policy 1702.80, Exhibit A) shall be completed and signed by the APCW and sent to the PA. The APCW shall document this action in the Narrative Recordings and scan the completed copy of the Designation Letter, saving it as an Attachment in the electronic file. No records shall be provided to the Public Administrator until the Public Administrator has provided the APCW with a subpoena. Formal service of a subpoena (face-to-face delivery to the APCW named on the subpoena) is not required for a subpoena from a Public Administrator who has been designated by means of the Designation Letter.

IV. Law Enforcement

Disclosures to law enforcement by the Department that are made to further the goal of providing protective services for a reporter adult are in keeping with the authority of chapter 192 and section 565.188, RSMo, and do not violate the HIPAA Privacy Rule. However, disclosures by the Department for other purposes must be reviewed to ensure the specific disclosure is permitted under the HIPAA Privacy Rule before the disclosure is made.

V. Subpoenas

Court testimony and/or APS case records may only be provided upon receipt of a valid subpoena and a court order (oral or written) for disclosure of confidential information (see Policy 1703.80).

VI. Other Record Requests

Record requests not subject to a subpoena require DSDS to determine if the requesting party has the appropriate authority to make that request. While a reported adult or their personal representative may request their record, OGC must be consulted on requests made by other individuals or entities. (See Policy 1706.40)

All release of information exceptions as outlined above (i.e., entities listed in statute that are allowed access, redacted reports, or subpoenas) shall be cleared through the APCS and/or OGC. It is important to apply all exceptions narrowly to encourage reporting. Questions regarding an individual’s right to access confidential records shall be directed to OGC.

Responsibilities Regarding Confidentiality

I. Adult Protective Community Supervisor (APCS)

It shall be the responsibility of the APCS (and management) to provide their staff with instructions on maintaining security of records and the proper release of information.

II. All Employees

Each department employee has the responsibility for assuring confidentiality of information within his/her control. “Information” includes written and electronic records and information provided over the telephone or in person. Formal release of written information (such as copying APS case records, reports or written documents) shall always be handled by the APCS, the Custodian of Records (CO) or another member of management.

General Guidelines

• Discussions of confidential information should be held in a place where it could not be easily overheard.
• Employees should take active measures to guard against access of confidential information (such as leaving files open where others could read or examine them, leaving computers unattended, sharing passwords or User IDs, etc.)
• Employees shall not access information about individuals unless it is being obtained for business reasons.
• Employees shall not use or share confidential information for personal gain or benefit.
• Information shall be shared only with persons who have a defined business-related reason for requesting such information and shall require verification of the identity of the requestor. When an inquiry is made by telephone and the identity of the caller is not known, verification may be accomplished by the APCW returning the call to the inquirer’s place of business. No protected health information shall be shared without an Authorization for Disclosure of Consumer Medical Health Information (1706.40, Exhibit A) signed by the reported adult.

Questions regarding personnel issues or breach of confidentiality shall be handled in accordance with the Confidentiality Policy contained in the Department of Health and Senior Services Administrative Manual (Ref: 11.6).

LEGAL REFERENCE: 192.2435, 192.2475, 192.2490, 192.2500, 192.2505, and 208.912 RSMo

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Effective: 07/12

(Statutory references updated 01/15)