PRIVACY LAWS AND ACCESS TO
CONFIDENTIAL PERSONAL INFORMATION
The 82nd Legislature made several significant changes to the laws that protect an individual’s confidential information, such as medical, school, and juvenile justice records. With some exceptions, personal information contained in these records are confidential under various federal and state privacy laws. The Legislature balanced privacy with governmental entities’ need for information.
Exchange of Confidential Juvenile Information between Governmental Entities. The overly restrictive state privacy laws have long hampered county departments’ ability to share juvenile information in order to provide effective and efficient services and to adequately protect the children. SB 1106 by Harris (Effective 6/17/2011), part of Harris County’s legislative package, broadens access to education, health, child protective services, and other juvenile records.
SB 1106 enacts the “juvenile justice exception” under the federal Family Educational Rights Privacy Act (FERPA), which allows schools to disclose student information to juvenile justice system agencies (termed “juvenile service provider”) when a student becomes involved in the juvenile justice system. As required by FERPA, the disclosed information may be used only for the limited purpose of delinquency prevention or treatment services and the entity must request the information prior to adjudication and certify in writing that it will maintain confidentiality. Information is exempt from the Public Information Act.
Further, SB 1106 clarifies that governmental entities that serve the same child (termed “multi-system youth”) may share a juvenile’s personal health information as well as a history of governmental services to coordinate care and improve the quality of services. Both exceptions are consistent with the federal Health Information Privacy and Accountability Act (HIPAA). Clinical psychological notes and information related to substance abuse treatment are not subject to disclosure. The entity receiving the information must maintain confidentiality, and disclosed information is exempt from the Public Information Act.
Local government departments may now receive information in child protective services (CPS) records under SB 1106 provided that the department needs the information in order to carry out its responsibilities under law to protect children from abuse and neglect. The federal Child Abuse Prevention and Treatment Act (CAPTA) requires disclosure of otherwise confidential CPS information to “any federal, state, or local government entity, or an agency of such entity, that has a need for such information in order to carry out its responsibilities under law to protect children from abuse and neglect.” (CAPTA, Sec. 106(b)(2)(A)(ix)). A videotaped interview of a child in a CPS case is now subject to production through discovery under SB 1106; however, the new law prohibits duplication of the tape.
Medical Records. HB 300 by Kolkhorst (Effective 9/1/2011) makes numerous changes to the state medical records privacy law. Beginning September 1, 2011, all “covered entities” that handle personal health information must train employees regarding state and federal laws concerning the privacy of personal health information as it relates to the entity’s particular course of business and the employee's scope of employment. The training must occur at least once every two years, and new employees must receive training within 60 days after the date of hiring.
If a consumer makes a written request for his or her electronic health record, a health care provider who uses an electronic health records system that is capable of fulfilling the request must provide the record in electronic form (or a form agreed to by the consumer) within 15 business days after it receives the request.
HB 300 prohibits disclosure of an individual’s protected health information to another in exchange for remuneration except for purposes of treatment, payment, health care operation, performing an insurance or health care operations functions or as otherwise authorized by state or federal law. A patient’s authorization is required for each electronic disclosures of protected health information unless the disclosure falls under one of the exceptions. Remuneration is limited to reasonable costs of preparing or transmitting the information.
Entities must also provide general notice if protected health information is subject to electronic disclosure. Such notice may be posted at the entity’s business on its website. HB 300 enhances civil penalties for violations regarding the improper release of personal health information and grants Office of the Attorney General the authority to institute an action against an entity that violates the statute. State agencies are also authorized to institute action against entities that they license who violate the statute. The bill also authorizes the development and adoption of rules by the Health and Human Services Commission (HHSC) of electronic standards for sharing protected health information.
Juvenile Justice Records. Juvenile records have three levels of protection- confidential, restricted access, and sealed. All three levels of protection were amended by HB 961 by Turner (Effective 6/17/2011).Confidentiality of Juvenile Justice Records. Before the passage of HB 961, only juvenile cases under the jurisdiction of a juvenile court (more serious offenses) were considered confidential; juvenile cases under the jurisdiction of municipal and justice courts (truancy, etc) were not. Under HB 961, all juvenile case records are confidential. HB 961 provides that all records, files and other information from which a record or file could be generated, which relates to a child who has been convicted of and has satisfied the judgment for a fine-only misdemeanor offense other than a traffic offense are confidential and may not be disclosed to the public.
Restricted Access to Juvenile Records. Under current law, access to juvenile case records is automatically restricted after the individual’s 21st birthday if:
· the case did not include violent or habitual felony offenses punished as a determinate sentence;
· the juvenile was not transferred to adult court; and
· the Department of Public Safety has not received a report that, after turning 17, the person was granted deferred adjudication for or convicted of a felony or a misdemeanor that can result in confinement. (Family Code, Sec. 58.203(a))
HB 961 lowers the age when the restricted access begins from age 21 to age 17 and removes the 3rd exception related to deferred adjudication.
Restricted access does not apply to sex offender registration information or to information in a gang database. Only courts and law enforcement have access to these records.
After their 17th birthday, individuals with juvenile criminal records under restricted access may legally state that they do not have a criminal record in applications for employment, licensing, and public or private benefits such as housing and education.
Sealing of Juvenile Records. Under current law, a person must be at least 21 years old before he or she can request the court to seal felony juvenile records. HB 961 lowers the age at which an individual is authorized to request the sealing of juvenile records from age 21 to age 19.
Under current law, less serious juvenile offenses cannot be sealed for at least 2 years after disposition. HB 2015 by Thompson (Effective 9/1/2011) creates an exception for human trafficking. The bill adds engaging in prostitution by a juvenile to the list of acts considered to be conduct indicating a need for supervision. HB 2015 furthers requires a court to order the immediate sealing of all records relating to the engagement in prostitution.
Council on Children and Families. SB 717 by Harris (Effective 9/1/2011) expands the purposes of the Council on Children and Families to include promoting juvenile/family information sharing among state agencies. The bill also expands the council's required duties to include the identification of technological methods to ensure the efficient and timely transfer of information among state agencies providing health, education, and human services to children and their families.
Report on the 82nd Legislature Harris County Legislative Relations