Confidentiality Rules Restrict Advocates' Access, Panel Says

, New York Law Journal

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ALBANY - The activities of volunteers tapped by Family Court judges to advocate for foster children are significantly restricted by confidentiality requirements, a state appeals court ruled.

The Appellate Division, Third Department, decided that a Court Appointed Special Advocate (CASA) in Ulster County may not gain access to either the state's registry of abused or neglected children or to information about the mental-health services received by the children in the course of the CASA's monitoring of a foster-care case involving four children.

The court said in Matter of Evan E., 516055, that in the absence of consent by the children, the attorney for the children and the parents, giving the CASA access to the mental-health information violates the Health Insurance Portability and Accountability Act (HIPAA) and state Mental Hygiene Law §33.13(c), which generally prohibits the release of mental-health information contained in foster-care records.

Furthermore, CASA volunteers are not among the individuals, agencies or courts who have access to child-abuse registry information under Social Services Law §422[4][A], the court ruled.

Family Court judges also cannot order that a CASA be allowed to attend the family service plan meetings that track a foster child's progress toward permanent placement, the Third Department decided.

"The reviews will often entail in-depth sharing, discussion and consideration of confidential information, such as medical and mental health information of the children or parents and reports of abuse and maltreatment," the court said in a ruling by Justice Edward Spain (See Profile).

The head of the statewide advocacy group for CASAs, Court Appointed Special Advocates of New York State, said the Dec. 26 ruling might prompt his group to seek legislation to codify the authority of CASAs.

"The court, by making it more difficult for CASA volunteers to participate in discussions with care-givers and professionals, neglected to consider that CASA volunteers are provided with mandated confidentiality training before being authorized to work in the courts, and then take an oath to maintain confidentiality when sworn in by the Family Court judge," said Arthur Siegel, a partner at Bond, Schoeneck & King in Albany and president of the CASA group.

Another member of the statewide group's board, Barbara Morgen, said the Third Department's "disappointing" ruling "creates barriers to the information-gathering process that could cause delays, especially if court hearings were to become required on a frequent basis."

"The last thing we need is to inject more litigiousness—and potentially more court delays— into the very difficult process of figuring out what is in the best interests of a child who has been a victim of abuse or neglect," Morgen said

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