Federal confidentiality laws and open protective service hearings: A potential clashFOI Alert Volume 3, Issue 8 (1997-98)
The U.S. Department of Health and Human Services is negotiating with several states over potential clashes of federal confidentiality laws and open child protective service hearings.
The news was first reported by The Star-Tribune (Minneapolis), where a fledgling pilot project to open proceedings had barely begun.
Twelve Minnesota counties had committed to a three-year project to open hearings for increased accountability to the public.
James Harrell, a deputy commissioner for the federal agency, issued a memo on June 29 that put the program at risk.
``Questions have arisen about whether courts that are open to the public and allow a verbal exchange of confidential information meet confidentiality requirements ..." Harrell wrote. Because confidentiality applied, Harrell also wrote that ``such information cannot be discussed in a public forum, including an open court."
The Minneapolis paper reported that as many as 16 states were at risk.
But the federal agency isn't identifying all the states which might subject to this additional scrutiny.
Michael Kharfen, a spokesman for HHS, said his agency has had specific conversations concerning open child protective service hearings with Minnesota, Michigan and New York.
The hearings that the feds worry about most include those involving child abuse, neglect, foster care and adoption.
``We don't want to consider this policy as one size fits all. The entire child welfare field is struggling with the balance of confidentiality and disclosure," Kharfen said. ``This is an ongoing challenge."
Kharfen mentioned the case of Elisa Izquierdo in Brooklyn.
The six-year-old's mother and stepfather were accused of the murder and are both serving prison sentences. The failings of the welfare system in that case were well documented and made national headlines. The child was killed after welfare officials returned her to her mother's custody and reportedly failed to respond to complaints of mistreatment.
She was violated with a toothbrush, beaten savagely, forced to eat her own feces and killed.
Subsequently, state law also was changed.
Too often, it takes a single and excessive tragedy to allow such public inspection of a system that is failing.
Kharfen said Minnesota officials had consulted with HHS about the state pilot project. But no questions were raised by the federal government until ``inquiries" were made by others.
When asked if specific complaints were filed or called into the federal agency concerning open courts, Kharfen says not exactly.
Inquiries about the Minnesota program came from two sources: a listserv operated by the American Bar Association on family courts and a state official in Minnesota.
At risk in Minnesota is about $60 million a year in federal money for services including child protection. A loss of federal funding could apply to other states as well.
As of July 28, the latest Minneapolis headline reported: ``Feds back off; open child protection hearings safe."
Kharfen said the pilot is proceeding but the federal government is still reviewing implementation in Minnesota.
``If our discussions lead to an assessment there is a conflict, we'd have to say to the state: `Change your program or risk losing federal dollars,' " he said.
One of the ironies here is that Michigan's child protection proceedings have been open for nearly 10 years.
And Minnesota used Michigan as a model for its pilot.
Officials there told Minnesota reporters that their program had not been called into question until recently.
Children are least likely to be at risk if the welfare system is open to public scrutiny.
Similarly, juvenile courts are also opening up across the country in criminal cases. Even those who have traditionally been opposed to open courts, including court-appointed child advocates, are seeking more public disclosure and open review.
To check on the status of your state, contact Kharfen at: 202-205-8347.