| (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).
|
| Source Note: The provisions of this §380.9909 adopted to be effective December 14, 2003, 28 TexReg 11112; transferred effective June 4, 2012, as published in the Texas Register June 22, 2012, 37 TexReg 4639; amended to be effective April 15, 2016, 41 TexReg 2499; amended to be effective March 1, 2019, 44 TexReg 714 |
