SECTION 361.151. Confidentiality of Records

(a) A contractor must not disclose information from the case record on a ward served under the contract with the DADS Guardianship Services Program in a manner that identifies the ward unless the disclosure is necessary to carry out the duties of the contractor, as described in subsection (b) of this section. Texas Human Resources Code, §161.111 makes information about a DADS guardianship case confidential, and this extends to the case record of DADS wards served through contracts with DADS. All records, reports, or working papers related to the case are confidential and are exempt from public disclosure under the Texas Open Records Act (Chapter 552, Government Code). DFPS Adult Protective Services Division records are also confidential under Texas Human Resources Code, §48.101.

(b) Examples of situations that might require pertinent case information to be disclosed include:

(1) arranging for the provision of services;

(2) facilitating involuntary mental health or intellectual disability commitment;

(3) cooperating with law enforcement during the criminal investigation of abuse, neglect, or exploitation; and

(4) responding to a court order for disclosure.

(c) If a contractor shares information about a ward, the contractor must advise the recipient of the information that the information is confidential and must not be further shared without permission.

(d) DADS does not disclose to a contractor the name of a reporter who makes a complaint of abuse, neglect, or exploitation to DFPS. If a contractor learns the reporter's name or other identifying information, the contractor must not share this information with any other agency.

(e) DADS guardianship staff may orally release the reporter's name to the courts, the district or county attorney, or law enforcement agencies if directed to do so by the judge trying the guardianship case. In the event a contractor learns a reporter's name or other identifying information, the contractor must not share this information with any other agency.

(f) Upon written request to a contractor, the contractor may provide a copy of guardianship case information, except the name and other identifying information about a reporter, on a ward served under a DADS guardianship contract to the following:

(1) the ward or the ward's guardian;

(2) a court-appointed executor or administrator of a deceased ward's estate;

(3) the ward's private attorney;

(4) a guardian ad litem;

(5) the attorney representing the proposed guardian in a guardianship proceeding initiated by the contractor;

(6) a court investigator or court visitor appointed by the court in a guardianship proceeding;

(7) Disability Rights Texas, the federally mandated protection and advocacy system; and

(8) out-of-state protective agencies.

(g) Upon oral request to a contractor, the contractor may release a copy of the guardianship case information, except the name and other identifying information about a reporter, to the attorney ad litem. If the attorney ad litem requests the name of the reporter and asserts this information is necessary to the attorney's ability to adequately represent the client, the contractor must notify the DADS Guardianship Services Program and request approval to release the information to the attorney ad litem. The contractor must not release information about the reporter to the attorney ad litem without written approval from the DADS Guardianship Services Program.

(h) Upon oral or written request, a contractor must release a copy of the entire case record, including the name of the reporter and information from other agencies, to a law enforcement agency or prosecuting attorney requesting a case under current criminal investigation, prosecution, or litigation against the contractor or DADS. A law enforcement agency must provide proof of identity before the contractor may release the requested information.

(i) If a contractor releases information to an individual or entity as allowed under this section, the contractor must record the following information in the ward's case record:

(1) the name of the requestor;

(2) the information that the contractor provided;

(3) the date the contractor provided the information; and

(4) a dated copy of the written request or date of the oral request.

(j) When the DADS Guardianship Services Program makes a referral to a contractor, DADS does not provide the entire case record unless the contractor is awarded guardianship and submits a written request for this information. Upon referral to a contractor, DADS provides only the following information:

(1) oral case record information, except the name and other identifying information about a reporter; and

(2) written information, including the Client Assessment completed by the DADS guardianship specialist, medical and psychological information, names and addresses of relatives, financial information and documents, personal data (for example, Social Security number, Medicaid number, and date of birth) pertaining to the proposed ward, and a copy of the most recent photograph on file.

(k) A contractor must comply with federally mandated restrictions concerning the sharing of the AIDS/HIV positive status of a ward or proposed ward with a proposed guardian.

(l) If a contractor's case files contain confidential reports from other professional individuals or agencies (for example, physicians, psychologists, law enforcement, the Department of Assistive and Rehabilitative Services, or DFPS), the contractor must not release this information to anyone other than the ward or the ward's guardian without first contacting the issuing professional individual or agency for consent to release the information. If the professional individual or agency does not agree in writing to the request, the contractor must not release the information. If the ward or the ward's guardian requests confidential reports from a professional individual or agency, a contractor may release the information, except a police report.

(m) A contractor may orally share case information, except the name and other identifying information about a reporter and the AIDS/HIV positive status of a ward or a proposed ward, with authorized personnel of a social services or medical agency working with the ward or the proposed ward to the extent this information is necessary for the agency to provide services to the ward or the proposed ward.

(n) A contractor may release written case information, except the name and other identifying information about a reporter, to a social services or medical agency working with a ward or a proposed ward only if the proposed ward or the current guardian has authorized the release in writing. The social services or medical agency receiving the information must agree to keep the information confidential.

Source Note: The provisions of this §361.151 adopted to be effective September 1, 2006, 31 TexReg 6797; amended to be effective February 9, 2015, 40 TexReg 609; transferred effective March 15, 2022, as published in the February 25, 2022 issue of the Texas Register, 47 TexReg 983