CONFIDENTIALITY: TRUTH OR EXCUSE

This “written thought” is the first of many to come regarding confidentiality and the ability to share information between health and human services systems and organizations.

All the reports discuss how systems should work together to avoid duplication, redundancies, and improve outcomes.  When dealing with children, many systems and agencies may be involved:  education, child care, child welfare, physical health, emotional health, nutrition services to name a few.  With adults, the systems regarding employment, public financial benefits, public medical benefits, work incentive and training programs intersect.  Today, each have their own IT systems and solutions and whenever there is a discussion of “blending” or “braiding” systems, one of the arguments against it is:  “We can’t share information because it is confidential.”  Sometimes I think that the confidentiality laws and rules are more stringent than the current set of criminal laws since I watch the news every night and there are crimes occurring, but information cannot be shared because of CONFIDENTIALITY.

So let’s look at the first of many examples and laws.  Sarah is a child in foster care who attends middle school.  She is 13 years old, the oldest of 3 siblings (she does not live with her younger brother and sister) and in the 7th grade.  This was the school that Sarah attended when she was placed in foster care and had received A’s and B’s in school up to this year.  She has been in foster care for 18 months and is now having problems in school.  In fact, she is truant 3 out of every 5 days and the child welfare system only found out about the truancy problems when she brought home her report card in June and it showed that she would be repeating the 7th grade due to her failure to pass her classes and her truancy.    The foster parent and the child welfare agency did not know about her truancy; the state child welfare system did not know that Sarah was doing poorly in school and was flunking 7th grade; the school did not know that Sarah was in foster care; and no one but Sarah knows why she is truant and not going to school.

Now let’s look at some of the laws involved:  there are federal and state child welfare laws and federal and state education laws.  The federal child welfare laws make clear that it is essential for the Sarah’s well-being that she succeeds in her education.  Look at the federal laws (including the Child and Family Services Improvement and Innovation Act, Fostering Connections to Success and Increasing Adoptions Act, part B of title IV-E of the Social Security Act, Child and Family Services, the Statewide Automated Child Welfare Information Systems law) discussing how systems need to work together and share information to improve the well-being outcomes for children and youth in foster care.  And the primary federal education law, the Family Educational Rights and Privacy Act (FERPA), makes clear that access to educational information must be provided to a parent/guardian or eligible child (based on age and continuing education).  But Sarah lives in a state where the state law makes clear that even for a child in foster care; the biological parent maintains educational responsibilities for the child.  Sarah and her siblings were removed from the care of their mother because of serious and repeated neglect.   The school has been sending notices to the mother of the truancy, but the mother ignores them and has not shared them with anyone.

Is there a solution to this problem for all the Sarahs in foster care?  There are several steps.  First, what is the minimally necessary information that the two systems need from each other?  The child welfare system needs the following basic educational information:

1. Enrolled in appropriate school and grade
2. Daily attendance
3. Infractions of rules
4. Grades
5. Any concerns for Sarah’s well-being

The education system needs the following basic child welfare information:

1. A child is placed in foster care
2. Location of placement
3. Primary person’s name and contact information

Why is any of this information damaging to the child’s rights of confidentiality or harmful to the outcomes of either the child welfare or the education systems?  What is nefarious about sharing this minimal information about a child whom both systems are serving?   The plain answer is that it is not harmful at all and only helpful.

Next, when do the systems need to share the information?  The best answer is as soon as possible.  But all systems like rules, so let’s say on a monthly update basis.  By the 5th day of each monthly, the child welfare system could update the names, address, and workers’ information for the children in foster care on the first day of that month and share it electronically with the appropriate educational entity.  The educational system could then download the current educational information for those children by the 15th day of each month and share it with the state child welfare agency.

The next question is how?  The number of jurisdictions that are sharing this type of information is numerous.    The two systems could enter into a Memorandum of Understanding.  The systems do not have to start from scratch since there are a number of such MOUs to use as a “boiler plate” example and build off of.  The child welfare system could ask the biological system to sign a consent for the education system to share this information.  Again, there are a number of excellent examples of such consents.  If the parent refuses, the child welfare system could ask the presiding judge to order that the school system share this information.  The judge definitely wants to know this information during court review hearings and it is a lot easier for all concerned if the child case worker provides it than if the school receives a court-issued subpoena to attend the court hearing.   Once the Memorandum of Understanding is signed, then the “techies” take over.  They will know how the IT systems can share this information.  They can also ensure that the information remains safe once shared and that only persons with a “need to know” can access the information.

Once the process has been operational, and the systems begin to trust each other that the information is being used properly and is protected once shared, the systems can explore additional information to share to continue to improve the educational outcomes.

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