37 Tex. Admin. Code § 380.9909 - Access to Youth Information and Records
(a) Purpose. This rule establishes controls
on access to Texas Juvenile Justice Department (TJJD) youth records and
information in compliance with federal and state laws and regulations that
limit access to youth records.
(b)
Applicability. This rule applies to all youth committed to TJJD.
(c) General Provisions. Records and
information concerning youth:
(1) must be
marked "confidential";
(2) must
remain in the custody and control of authorized personnel at all
times;
(3) may not be disclosed
except as allowed by law; and
(4)
must be stored and transported in a manner that ensures security and
confidentiality.
(d)
Access by a Youth or Parent.
(1) In the
interest of protecting TJJD youth and the public, TJJD may disclose records and
other information concerning a youth to the youth and the youth's parent or
guardian only if the disclosure would not:
(A)
materially harm the treatment and rehabilitation of the youth; or
(B) substantially decrease the likelihood of
TJJD receiving information from the same or similar sources in the
future.
(2) If TJJD
decides it is appropriate to disclose information to the parent or guardian
concerning a youth who is at least 18 years old, TJJD may do so only with the
youth's written consent.
(e) Educational Information.
(1) Educational information is made available
in accordance with Title 20 of the United States Code §1232g and Title 34
of the Code of Federal Regulations (CFR).
(2) A TJJD youth who is at least 18 years old
may access his/her own educational information or grant consent to another
individual to access his/her information. If the youth is under the age of 18,
the parent or guardian has the right to access the youth's educational
information or grant consent to another individual to access the youth's
educational information.
(3) TJJD
may disclose educational information of a youth who is at least 18 years old to
a parent without the youth's consent if the parent is claiming the youth as a
"dependent student" as defined in Section
152 of the Internal Revenue Code.
(4) No consent is necessary if TJJD is
releasing educational information on a youth to school officials within TJJD or
to the school district where the youth seeks to attend.
(f) Alcohol and Drug Treatment Records.
(1) Access to youth records that contain
certain information identifying the youth as chemically dependent or as a
substance abuser may be disclosed only as provided in 42 CFR Part 2.
Confidentiality requirements for this type of information are more restrictive
than requirements in other regulations.
(2) Drug and alcohol information that may not
be released includes any information that:
(A)
would identify a youth as an alcohol or drug abuser; or
(B) is obtained for the purpose of treating
alcohol or drug abuse, making a diagnosis for that treatment, or making a
referral for that treatment.
(3) At the time of admission, youth diagnosed
as alcohol or drug abusers must:
(A) be
informed that federal laws protect the confidentiality of their alcohol and
drug abuse records; and
(B) be
given a written summary of the federal law and regulations.
(4) If a document contains
information regarding alcohol and drug abuse but it also contains other
information that may appropriately be released, TJJD must redact the alcohol
and drug abuse information unless appropriate release forms have been
completed.
(g) Release
of Information upon Escape. TJJD may disseminate the following information upon
an escape of a youth:
(1) the youth's name,
including other names by which the youth is known;
(2) the youth's physical description,
including sex, weight, height, race, ethnicity, eye color, hair color, scars,
marks, and tattoos;
(3) a
photograph of the youth; and
(4) if
necessary to protect the welfare of the community, any other information that
reveals dangerous tendencies of the youth or expedites the apprehension of the
youth.
(h) Access under
Federal Protection and Advocacy Systems. Pursuant to Title 42 of the United
States Code §10805 and §15043, federal law provides for a federally
funded system of mental health advocates and a federally funded system of
advocates for the developmentally disabled and grants those advocates access to
facilities and TJJD records for the purpose of investigating abuse and neglect
of the mentally ill or developmentally disabled.
(i) Health Insurance Portability and
Accountability Act.
(1) TJJD is not a covered
entity under the Health Insurance Portability and Accountability Act (HIPAA)
because it does not engage in covered transactions as defined by
45
CFR §
160.103. Records created by an
entity covered by HIPAA are subject to TJJD's regular confidentiality rules and
procedures.
(2) Protected health
information generated by HIPAA-covered contract providers (e.g., University of
Texas Medical Branch) and included in the electronic health record of youth in
high-restriction facilities and halfway house programs is the property of TJJD.
The status of the source of the information does not impose HIPAA restrictions
on the use of that healthcare information.
(3) To the extent that any healthcare
information obtained by TJJD may be covered by HIPAA as it applies to youth at
high-restriction facilities and halfway houses, that healthcare information is
for the governmental uses and purposes enumerated in
45
CFR §
164.512, including but not limited
to:
(A) the provision of healthcare to that
youth;
(B) the health and safety of
that youth or other youths;
(C) the
health and safety of the officers or employees of or others at a
high-restriction facility or halfway house;
(D) the health and safety of such individuals
and officers or other persons responsible for the transporting of youths or
their transfer from one institution, facility, or setting to another;
(E) law enforcement on the premises of a
high-restriction facility or halfway house; and
(F) the administration of the safety,
security, and good order of a high-restriction facility or halfway
house.
(4) A contract
healthcare provider who is a HIPAA-covered entity and provides services to TJJD
youth other than those youth in high-restriction facilities or halfway houses
is required as a condition of the contract to secure all necessary consents or
authorizations to provide to or obtain from TJJD protected health
information.
(j) Release
of Certain Information for a Legitimate Need. TJJD may disclose information
regarding a youth's location and committing court to a person having a
legitimate need for the information (e.g., to provide a location for a bench
warrant or service of process to be issued the youth).
Notes
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