Attorney General's Opinion
Attorney General Richard Blumenthal
June 9, 1998
Honorable Joyce A. Thomas
Department of Social Services
25 Sigourney Street
Hartford, CT 06106
Dear Commissioner Thomas:
In 1995, the Commissioners of the Departments of Social Services and Children and Families requested a legal opinion on their ability to share information about families and children, notwithstanding certain statutory client confidentiality restrictions. Both Commissioners indicated that increased sharing of client-specific information would allow their agencies to fulfill their statutory responsibilities more effectively. Since the law was in transition at that time, we did not issue a formal response to those requests, but instead provided a substantial amount of informal legal assistance to each agency. We also reviewed and approved DSS regulations which addressed the client confidentiality issues you raised and increased the sharing of information between the two agencies. Additionally, we advised each agency on numerous changes to state and federal law. As a result, the Commissioner of the Department of Children and Families (hereinafter "DCF") withdrew her request for advice, but you have indicated a continued desire to receive a formal opinion. Since your request is predicated upon statutory confidentiality provisions which no longer apply, our responses will be made in light of the current statutory provisions.
It is our opinion that the release of information by the Department of Social Services (hereinafter "DSS") to DCF is controlled by DSS's own regulations. The regulations validly implement the current requirements of state and federal law. The regulations provide for disclosure of client identifying information to DCF if: 1) disclosure is related to program administration; 2) DCF finds that a child is in "imminent danger" and requests information from DSS; 3) DSS is aware of circumstances indicating possible child abuse or neglect (whether or not DCF is aware of the case and has made the requisite finding); or 4) any other enumerated exception to client confidentiality requirements applies.
DCF is the state agency that is charged with investigating child abuse and neglect and with providing preventive and protective services to abused and neglected children. Conn. Gen. Stat. 17a-3. The Department of Social Services ("DSS") is the state agency charged with the administration of programs that provide cash (welfare) assistance to needy families. Conn. Gen. Stat. 17b-2. As a result of the sensitive nature of their activities, both agencies are obligated by state statute to protect client confidentiality except to the extent that disclosure of client specific information is permitted by law. Conn. Gen. Stat. 17a-28b (DCF); Conn. Gen. Stat. 17b-90 (DSS).
In addition, both agencies receive federal financial assistance as a result of the state's election to participate in various federal cooperative grant programs that are designed to assist the states in providing either child welfare or financial assistance to children and families.1 As a result, both agencies must comply with those federal client confidentiality requirements that constitute conditions of participation in the federal grant programs.
You and the Commissioner of the Department of Children and Families provided us with eighteen (18) specific fact scenarios in which it would assist one agency in its delivery of services if client specific information, in the possession of the other agency, could be shared without violating client confidentiality requirements. As you are aware, there have been numerous changes to state and federal law since our opinion was requested.
First, the state statute that is applicable to DSS's disclosure of information concerning recipients of assistance, Conn. Gen. Stat. 17b-90, was amended by P.A. 96-263 to require the Commissioner of DSS to disclose location information concerning any child or family receiving assistance upon the request of any authorized representative of DCF if DCF had determined that "imminent danger to such child's health, safety or welfare exists."
By letter dated August 5, 1996, Deputy Commissioner Sarah Miller wrote to Assistant Attorney General Richard J. Lynch indicating that ". . . we are not confident that this amendment is consistent with federal law. Thus, we would like to modify our original request to ask that you counsel us as to whether Public Act. 96-263 is consistent with federal law and, if not, how you suggest it be amended."
The federal statute that formerly governed the state's provision of federally-assisted cash benefits to needy families (the former Aid to Families with Dependent Children program) (hereinafter "AFDC"), which contained the confidentiality requirements that prompted your concern about the legality of the 1996 state statutory amendments, was then repealed and replaced by Pub.L. 104-93, 110 Stat. 2105, entitled the "Personal Responsibility and Work Opportunity Act of 1996." In its place, Congress substituted a new block grant program, called "Temporary Assistant to Needy Families" (hereinafter TANF"). This new federal law affords the states considerably more discretion to design their welfare programs in the manner that the state determines is most appropriate. TANF requires each state to adopt a confidentiality provision, but leaves the contours of the required confidentiality provision entirely to state discretion. Specifically, TANF provides that each state's TANF state plan must include an outline of how the state intends to "take such reasonable steps as the State deems necessary to restrict the disclosure and use of information about individuals and families receiving assistance under the program attributable to funds provided by the Federal Government." 42 U.S.C. 602(a)(1)(A)(iv), as amended by Section 103 of Pub.L. 104-193.
The state legislature then responded to the changes in federal law by replacing the former state AFDC program with a new program that is entitled, at the state level, "Temporary Family Assistance" (hereinafter "TFA). P.A. 97-2 (June 18, 1997 Special Session). This Public Act essentially repealed all of the state statutory provisions that were applicable to the state's former AFDC program, and substituted in their place statutory provisions which control the Commissioner's administration of the new TFA program. Section 37 of P.A. 97-2 amended the state confidentiality statute, Conn. Gen. Stat. 17b-90, to provide, in pertinent part, that:
The commissioner (of Social Services) shall make regulations necessary to enable him to carry out the programs the Department of Social Services is designated to administer pursuant to Section 17b-2, as amended by this Act, including any regulation necessary for receiving grants from the federal government. . . and regulations governing the custody and use of the records, papers, files and communications concerning persons applying for or receiving assistance under said sections. (Emphasis added).
Section 124 of P.A. 97-2 amended Conn. Gen. Stat. 17b-90 to specifically provides that disclosure of client identifying information may be made to the Department of Children and Families when that agency determines that there is an imminent danger to the child, as well as to the Departments of Labor and Mental Health, when necessary for said agencies to implement specified programs that assist needy individuals. As amended by Section 124 of P.A. 97-2, Conn. Gen. Stat. 17b-90(b) provides:
(b) No person shall, except for purposes directly connected with the administration of programs of the Department of the Social Services and in accordance with the regulations of the commissioner, solicit, disclose, receive or make use of, or authorize, knowingly permit, participate in or acquiesce in the use of, any list of the names of, or any information concerning persons applying for or receiving assistance from the Department of Social Services or persons participating in a program administered by said department, directly or indirectly derived from the records, papers, files or communications of the state or its subdivisions or agencies, or acquired in the course of the performance of official duties. However, the Commissioner of Social Services shall disclose (1) to any authorized representative of the Labor Commissioner such information directly related to unemployment compensation, administered pursuant to Chapter 567 or information necessary for implementation of Sections 119 to 122, inclusive of this Act, to any authorized representative of the Commissioner of Mental Health and Addiction Services any information necessary for the implementation and operation of the basic needs supplement program, to any authorized representative of the Commissioner of Administrative Services, or the Commissioner of Public Safety such information as the state Commissioner of Social Services determines is directly related to and necessary for the Department of Administrative Services or the Department of Public Safety for purposes of performing their functions of collecting social services recoveries and overpayments or amounts due as support in social services cases, investigation social services fraud or locating absent parents of public assistance recipients; or (2) to any authorized representative of the Commissioner of Children and Families necessary information concerning (A) the evaluation of the Temporary Assistance for Needy Families program or (B) a child or the immediate family of a child receiving services from the Department of Social Services if the Commissioner of Children and Families has determined that imminent danger to such child's health, safety or welfare exists. No such representative shall disclose any information obtained pursuant to this section, except as specified in this section. Any applicant for assistance provided through said Department under the Temporary Family Assistance program shall be notified that, if and when such applicant receives benefits, the Department will be providing law enforcement officials with the name and address of such applicant upon the request of any such official pursuant to Section 125 of this Act. (Emphasis added).
In addition, Section 125 of P.A. 97-2 adopted a new provision, which has not yet been codified, that requires DSS to provide information upon request to law enforcement officials under prescribed conditions. This Section of P.A. 97-2 provides:
The Department of Social Services shall disclose the current address of a recipient of Temporary Assistance for Needy Families and the current address, social security number and photograph, if available, of a recipient of food stamp program benefits, as required by federal law, upon the request of a federal, state or local law enforcement officer if the following conditions are met:
(1) Such officer provides said department the name of the recipient;
(2) (A) Such officer notifies said department that the recipient is fleeing to avoid prosecution, or custody or confinement after conviction, under the laws of the place from which the individual flees, for a crime, or an attempt to commit a crime, which is a felony or high misdemeanor under the laws of the place from which the individual flees, or violating a condition of probation or parole imposed under federal or state law, or (B) the recipient has information necessary for such officer to conduct official duties; and
(3) The location or apprehension of the recipient is within official duties of such officer.
Thus, the 1997 Public Act authorizes disclosure to DCF under certain conditions. DSS has also promulgated regulations, in accordance with the requirements of the Uniform Administrative Procedures Act ("UAPA"), implementing its new TFA program, which address when DSS may disclose information concerning recipients of assistance in the absence of a consent to release executed by the caretaker relative on behalf of the child. DSS's regulations provide as follows:
B. Release of Information for Program Administration
In general, the Department releases information concerning an assistance unit to entities under contract with the Department and to others for purposes directly connected with the administration of the Department's programs, or the administration of any other federal or federally assisted program which is based on need, to the Department of Children and Families for child protection purposes, and to the Department of Health and Addiction Services when needed to determine the suitability of child care arrangements. (emphasis added)
Reg. CT. St. Ag. 17b-10, Uniform Policy Manual, Section 8510.20B. (emphasis added)
DSS's regulations specifically provide for the release of information to DCF under the following circumstances:
D. Release of Information to the Department of Children and Families (DCF)
1. The Department of Social Services releases to the Department of Children and Families necessary information concerning a child or the immediate family of a child receiving assistance under the following conditions.
a. if the child's health, safety, or welfare is in immediate danger as determined by DCF; and
b. release is only to the Commissioner of DCF or his official designee.
2. In addition to the provisions of 1, above, and notwithstanding the lack of a request for information from the Commissioner of DCF, the Department notifies DCF if there is evidence indicating that any child under the age of 18 is being neglected or physically or mentally abused while in the care of a parent or other person responsible for the child's care.
Reg. CT. St. Ag. 17b-10, Uniform Policy Manual, Section 8510.20D.
The specific questions posed assume that DSS is still subject to federal and state statutory restrictions on the disclosure of information. The restrictions no longer apply as a result of the intervening changes to state and federal law. The Commissioner of DCF has withdrawn her request for a formal opinion in light of the informal consultation that our Office has provided. Many of the posed fact scenarios relate to when DCF can disclose information to DSS. In light of the withdrawal of DCF's request for a formal opinion, we will only endeavor to advise you as to your ability to disclose client specific information to DCF under the currently applicable state and federal statutes.
I. THE STATE LAW REQUIREMENT THAT THE DEPARTMENT OF SOCIAL SERVICES DISCLOSE INFORMATION TO THE DEPARTMENT OF CHILDREN AND FAMILIES UPON ITS REQUEST IF DCF FINDS "IMMEDIATE DANGER" TO A CHILD'S HEALTH OR WELFARE, CONN. GEN. STAT. 17b-90, AS AMENDED BY P.A. 96-263 IS NOT INCONSISTENT WITH, OR PRECLUDED BY, ANY PROVISION IN FEDERAL LAW
First, as noted supra, you amended your request for advice on August 5, 1996, to ask whether the amendment to Conn. Gen. Stat. 17b-90 that was made by P.A. 96-263 (requiring disclosure to DCF upon its finding of imminent danger and its request for information) is inconsistent with, and precluded by, the requirements of federal law. As a result of the repeal of the former AFDC program and the advent of the new discretionary TANF block grant program, your amended question can readily be answered. As noted supra, the only client confidentiality requirement in the TANF federal statute is the requirement that the state adopt some kind of client confidentiality requirement. The contours of the confidentiality requirement, however, are left entirely to state discretion. One of the exceptions to client confidentiality that is contained in Connecticut's confidentiality statute is the requirement that DSS provide information to DCF upon DCF's request and in accordance with the provisions of Conn. Gen. Stat. 17b-90. Client confidentiality rules inevitably reflect a balancing of competing interests. The policy determination that client confidentiality concerns must give way to DCF's need for information when necessary for DCF to fulfill its child protection mandates is a determination that the state is free to make under TANF. TANF leaves the contours of when client confidentiality will be protected in the face of competing concerns entirely to state discretion. See page 4 infra. Accordingly, there is no conflict with the requirements of federal law, and the requirements of state statute must be given full effect.
II. THE DEPARTMENT OF SOCIAL SERVICES' DISCLOSURE OF INFORMATION TO THE DEPARTMENT OF CHILDREN AND FAMILIES IS CONTROLLED BY THE DEPARTMENT OF SOCIAL SERVICES' OWN REGULATIONS WHICH REGULATIONS HAVE THE FORCE OF STATUTE
The ability of DSS to lawfully disclose information to DCF is controlled by DSS's own regulations. A regulation that is promulgated by an agency in accordance with the procedural requirements of the UAPA has the force of a statute provided that the agency is authorized to promulgate the regulation, and further provided that the regulation is not inconsistent with its authorizing statute. Travelers Ins. Co. v. Kulia, 216 Conn. 390, 399, 579 A.2d 525 (1990). In accordance with its own regulations, DSS may disclose information to DCF either when 1) a representative of DCF informs DSS that DCF has found that a child is in imminent danger to his/her health, safety or welfare and requests information from DSS; 2) the caretaker relative consents to the release of information about the child; 3) DSS comes into possession of information that indicates the possibility that an assisted-child is being abused or neglected, whether or not DCF is already involved in the case and has made the requisite finding of "immediate danger;" or 4) when disclosure is otherwise authorized by another exception to confidentiality requirements that is enumerated in DSS's regulations. Some of the hypothetical fact scenarios in the request pose a DCF investigation of possible child abuse or neglect, which would be assisted by the disclosure of client information by DSS. Our general advice is that (in the absence of alternative authority authorizing the release of information), DSS can release the requested information if DCF has made the requisite finding that a child's "health, safety or welfare is in immediate danger. . . ." Reg CT. St. Ag. 17b-10, Uniform Policy Manual, 8510.20 D. Under the statute and the implementing regulation, the "immediate danger" finding is the province of DCF. If the requisite "immediate danger" finding has not been made by DCF, DSS should notify DCF of its failure to make the necessary finding and inform that agency that without the requisite finding DSS can not release information about an assisted child to DCF unless another exception to child confidentiality requirements authorizes the disclosure. One possible exception, which may allow DSS to assist a DCF abuse or neglect case, is client consent to disclosure. DSS may release information about assisted clients with the consent of the assisted family. Accordingly if the "caretaker relative" consents to the release of information about members of the assisted family, DSS can release that information that the assisted family has authorized it to disclose.
Second, DSS may release information in its files to DCF if DSS comes into possession of information that indicates that a child may be subject to child abuse or neglect, whether or not DCF is already involved in the case or has requested the information. Reg. CT. Ag. 17b-10, Uniform Policy Manual 8510.20D.2.
Third, DSS is required to release information to law enforcement officials upon request if the law enforcement official informs DSS that the information is requested for specified purposes, which purposes include the location of a fugitive felon. Section 125 of P.A. 97-2 (June 18, Sp. Sess); Reg. CT. Ag. 17b-10, Uniform Policy Manual, 8510.20 G.
A number of other statutory provisions require the sharing of information between the agencies for purposes of program administration.2 These provisions generally apply to children who already have been found to be abused or neglected as a result of IV-B child welfare investigation, and are receiving federally subsidized IV-E foster care assistance payments. To the extent those provisions apply to a particular case, however, release of information may be made under these sections for purposes of program administration.
The release of information by DSS to DCF is controlled by the text of DSS's own regulations, which are presumptively valid and have the force of statute. Those regulations allow DSS to disclose information to DCF on DCF's request if DCF has made the requisite "immediate danger" finding, and further allow DSS to disclose information to DCF if DSS comes into possession of knowledge indicating that a child may be subject to child abuse or neglect. The regulations also contain a number of other exceptions to client confidentiality requirements which may allow disclosure under the facts of the particular case.
Very truly yours,
Assistant Attorney General
1 The Social Security Act has established a number of cooperative grant programs that make federal financial assistance available to the states for prescribed purposes. The various cooperative grant programs are codified as "Titles" to the Social Security Act. The Titles that are applicable to this request for advice include Title IV-A Temporary Assistance to Needy Families program administered by DSS (formerly the AFDC Program), 42 U.S.C. 601 et seq., the Title IV-B Child Welfare Services Program administered by DCF, 42 U.S.C. 620 et seq., the Title IV-D Child Support Program administered by DSS, 42 U.S.C. 651 et seq., the Title IV-E Foster Care and Adoption Assistance Program administered by DCF, 42 U.S.C. 670 et seq., and the Title XIX Medicaid Program administered by DSS, 42 U.S.C. 1396 et seq. As a consequence of participating in these programs and receiving federal funds, the state, through its administering agency, is required to comply with all statutory conditions of participation that apply to each of the programs administered by the agency. This advice will only address the confidentiality provisions of TANF, which is implemented by a cash assistance program for needy families that is called Temporary Family Assistance ("TFA") at the state level. As long as the agency only discloses information that is authorized for release by its TFA regulations, which implement the federally-assisted TANF program, and does not also disclose the fact that the child is a recipient of assistance under the Medicaid or under any other program administered by the Department, the confidentiality requirements of the other programs will not be implicated.
2 Even after the repeal of the former federal AFDC program and its replacement at the federal level by the TANF discretionary block grant program, there are a number of federal statutory requirements that require DSS and DCF to coordinate their programs, and to share necessary information as a result. TANF, like the former AFDC program, continues the requirement that a state must have an approved IV-E foster care and adoption assistance plan in order to participate in the IV-A TANF block grant program. 42 U.S.C. 602(a)(3) (1997). The state plan of the IV-E child protection agency (DCF) is also required to assure the Secretary that IV-E programs will be coordinated with the programs of the state "under parts A of this subchapter..." 42 U.S.C. 671(a)(4). Similarly, the state plan for child welfare services (abuse and neglect investigation) under Part IV-B of the Social Security Act must "provide for coordination between the services provided for children under the plan and . . . under the State plan approved under part A of this subchapter. . . with a view to provision of welfare and related services which will promote the welfare of such children and their families." 42 U.S.C. 622(b). In addition, the Department of Social Services is required to grant Title XIX medical assistance, and is further required to pursue IV-D child support collections on behalf of each child who receives IV-E foster care or adoption assistance benefits. 42 U.S.C. 672(h) and 42 U.S.C. 671(a)(17), respectively. In order to comply with these affirmative federal statutory mandates, there obviously must be close cooperation between DCF and DSS, including the disclosure of client identifying information when necessary for purposes of program administration.