Privacy Policy and Technology Solutions: Introduction to the issues

Victor E. Flango
Executive Director, Program Resource Development, National Center for State Courts

Although safety, permanency, and well-being were all established as the three national goals for children in foster care by the Adoption and Safe Families Act of 1997 (ASFA), outcome measurement for courts has heretofore focused on the first two goals. Now the emphasis is shifting toward the third. In some respects, well-being of children in care was the most challenging goal to tackle because it is more difficult to define and to reach consensus on what constitutes well-being. Yet, like safety and permanency, well-being of children in care can only be achieved if all of the agencies with an interest in children share the responsibility, rather than relegating the burden primarily to child welfare agencies. Because courts, schools, hospitals, and other medical and mental health professionals all share with child welfare agencies the goal of improved well-being for children in foster care, the measures of well-being become more complicated, data exchange becomes more difficult, and issues of privacy and confidentiality of records become more salient. Fortunately, technology provides us with a way to overcome privacy hurdles without compromising the legitimate concerns of children and families.

Safety and Permanency Outcome Measures: Need for Data Exchange

The initial focus on developing outcome measures for children in foster care was on child welfare agencies. The data necessary to construct those measures were in Statewide Automated Child Welfare Information Systems (SACWIS), or other data systems under control of the child welfare agency; so, data exchange with other collaborating partners and, therefore, privacy concerns were simply not issues.

Much of the data required to determine the safety, permanency, and well-being of children are available from the child welfare system. Relying exclusively on data from the child welfare system, however, presents an incomplete perspective on how children in care are faring. Consider, for example, the role courts play in the lives of foster children. They determine whether children will be removed from their homes, the length of time children remain in foster care, and where they will permanently reside. Specifically, courts play an important oversight role in terms of reviewing the case plan and deciding on placement, visitation, and contacts with parents. In addition, court scheduling of hearings and periodic review, as well as decisions to grant continuances, affect the timely achievement of permanency. In sum, courts play a crucial role in setting and monitoring child welfare goals—data from both child welfare agencies and courts are needed to provide a complete picture of how children are progressing toward safe and timely permanency.

Court outcome measures were developed to measure the shared goals of safety and permanency, as well as court-specific goals of due process and timeliness of court actions. The Toolkit for Court Performance Measurement in Child Abuse and Neglect Cases, which contains a full set of 30 dependency performance measures, was released in 2009.[i]

Privacy Policy

To entice state courts to use these outcome measures, 9 of the 30 measures were designated as key performance measures, and at least ten states report that they are using at least 8 of the 9 key measures.

Process measures, as opposed to outcome measures, can be gathered by child welfare agencies and courts separately. From a child’s perspective, time spent in child welfare systems is not separate from time spent in the court process.

Measuring the time lapse between removal of the child from the home until permanency requires that time spent in processing by child welfare agency staff and court staff be combined to reach a total. Were the children involved kept safe? Was permanency achieved and how? As a practical matter, answers to these outcome questions require data to be exchanged between courts and child welfare agencies.

Although some states exchange data by sharing batch files overnight, near real-time electronic exchange is the most efficient and effective way of sharing information (see Flango, 2008, 2009). Electronic data exchanges provide both courts and child welfare agencies with timely, complete, and accurate information upon which to make decisions promoting child safety, permanency, and well-being because they:

  • eliminate duplicate data entry for both courts and child welfare agencies
  • improve accuracy of information—courts and agencies each contribute data needed by their own systems
  • facilitate planning of child welfare staff by keeping track of when hearings are scheduled and reducing the number of telephone calls court staff receive about scheduled hearing times
  • reduce the time court staff spend researching the relationships between individuals and collateral parties

Twenty-four states have implemented data exchanges between courts and child welfare agencies, and 19 more are planning to do so. Nine states transmit data in one direction—from the Adoption and Foster Care Analysis and Reporting System (AFCARS) to courts (www.fosteringcourtimprovement.org). Colorado and Utah are furthest along in implementing comprehensive, two-way data exchanges (Flango, 2011). Results from child and family service reviews have shown conclusively that states that have the best collaboration between courts and child welfare agencies have better outcomes for children.

Trend to Well-Being—Privacy Concerns

Court well-being outcome measures were not developed initially as part of the Toolkit. The court’s role in child well-being is perceived as being less direct than court involvement in safety and permanency; therefore, the measures were developed later. More important, tackling well-being involves more partners in addition to child welfare agencies and courts; schools, physicians, and mental health professionals also need to be involved, which means that data exchanges are more complicated and privacy concerns escalated. Yet ASFA does include well-being as a goal, and courts have a responsibility to see that children in foster care have been to the doctor or dentist, have had mental health screenings if necessary, and are doing well in school.

With support from Casey Family Programs, the National Center for State Courts (NCSC) called together a focus group of distinguished representatives from child welfare agencies, educational and research institutions, the advocacy community, and courts to work on educational outcome measures for courts (Flango and Sydow, 2011). These are currently being field-tested in selected states to determine how well they meet state needs, how realistic they are, and how easy they are to obtain.

Privacy PolicyEncouraged by the success of the education focus group, NCSC convened another, under the aegis of the National Child Welfare Resource Center on Legal and Judicial Issues, to draft measures for physical and emotional well-being. [ii] These will be field-tested, as well. The price for presenting this more comprehensive picture of the well-being of children in care is the added complexity of data sharing and the concomitant concerns with issues of privacy and confidentiality of data.

Fortunately, a national standard has been adopted by the justice and health and human services communities for exchanging critical data—the National Information Exchange Model (NIEM; www.niem.gov). By standardizing the semantics or meaning of content in data exchanges, NIEM ensures that different information systems will understand data elements in the same way. Nevertheless, there are still issues to be addressed. For example, should all collaborating partners exchange data with all other partners, or should the child welfare agency be a gatekeeper and present required data to courts as appropriate?

National Standards also provide some technological solutions that address the challenges of privacy and confidentiality. For example, how can privacy and public access rules be enforced after the data leave the court and child welfare agency and are transmitted to other agencies? Meta tagging provides one solution.

In the following set of interrelated articles, Judge Anthony Capizzi discusses the key elements of a privacy policy, whereas Thomas Clarke and Diana Graski discuss technology solutions to privacy issues, including a new privacy tool. Surrounding these core articles are satellite pieces discussing the privacy concerns of key partners. Jessica Feierman, Alicia Davis, and Tara Kunkel illustrate how health (HIPAA), education (FERPA), and drug laws can benefit children in care without becoming an obstacle to data exchange.

[i] These performance measures were originally published in 2004 in Building a Better Court: Measuring and Improving Court Performance and Judicial Workload in Child Abuse and Neglect Cases (available on the National Center’s Web site, http://www.ncsc.org/building-better-court). A partial history of the development of court performance measures for abuse and neglect cases is reported in Flango, 2010.

[ii] Well-being focus group members were Sarah Fox, CIP training specialist, New Hampshire Court Improvement Project; Hon. Robert R. Hofmann, associate judge, Child Protection Court of the Hill Country, Mason, Texas; Sandi Metcalf, director of juvenile services, 20th Judicial Circuit Court, Grand Haven, Michigan; Sandy Moore, administrator, Office of Children and Families in the Courts, Pennsylvania; Ronald M. Ozga, Governor's Office of Information Technology, Colorado Department of Human Services; and Sonya Tafoya, senior research analyst, AOC Center for Families, Children and the Courts, California. In addition to the author, Resource Center staff included Eva Klain and Scott Trowbridge from the American Bar Association; Dr. Alicia Summers from the National Council of Juvenile and Family Court Judges; and Lisa Portune, Deborah Saunders, and Nora Sydow from the National Center for State Courts.