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Mental health and substance abuse treatment information and records are protected by state and federal laws. Furthermore, mental health and substance abuse professionals have legal and ethical obligations related to their state licensure and professional standards which prohibit their release of client information, except under certain conditions, without consent (For example: s.90.503, s.455.667 and s.455.671, F.S., 45 CFR ss164.512(k)(5).) The confidentiality of substance abuse treatment set forth in Section 397.501(7) F.S., (discussed in detail on pages 4-9 and 4-10), and parallel Federal provisions in 42 CFR Part 2, are very stringent. However, the disclosure of information obtained under Chapter 985 in the discharge of official duty by licensed professionals or licensed community agency representatives participating in the assessment and treatment of juvenile offenders to the Department and its designees is authorized as provided below. Section 985.04(3) provides that all information obtained under Chapter 985 in the discharge of official duty by any licensed professional or licensed community agency representative participating in the assessment and treatment of a juvenile is confidential and may be disclosed only to authorized personnel of the court, the Department of Juvenile Justice and its designees, law enforcement agents, school superintendents and their designees, any licensed professional or licensed community agency representative participating in the assessment or treatment of a juvenile, and others entitled under Chapter 985 to receive that information, or upon order of the court. Section 985.31(4)(f) provides that the privileged and confidential status of the clinical and assessment treatment record shall not be lost by either authorized or unauthorized disclosure to any person, organization or agency. Thus, the confidentiality of treatment information and records obtained by the Department must be maintained.

A. MENTAL HEALTH TREATMENT RECORDS: (For providers contracted or licensed by the

Department of Children and Families to provide mental health services pursuant to Chapter 394, F.S.)

Section 394.4615, Florida Statutes provides that a mental health clinical record is confidential and exempt from the public records provisions of s. 119.07(1). Unless waived by express and informed consent by the youth of legal age or the minor youth’s guardian, the confidential status of the clinical record is not lost by either authorized or unauthorized disclosure to any person, organization or agency.

1. The clinical record shall be released when:

a. The youth of legal age or the minor youth’s parent/legal guardian authorizes the release.

b. The youth is represented by counsel and the records are needed by the youth’s counsel for adequate representation.

c. The court orders such release.

2. Information from the clinical record may be released when: a. A youth declares an intention to harm other persons.

b. The administrator of the facility or Secretary of the Department of Children and Families deems release to a qualified researcher as defined in administrative rule, an aftercare treatment provider, or an employee or agent of the Department of Children and Families is necessary for treatment of the youth, maintenance of adequate records, compilation

c. For reporting of incidents of suspected child abuse and neglect to the appropriate state or local authorities as required by law.

Any person, agency or entity receiving information pursuant to s. 394.4615 shall maintain such information as confidential and exempt from the provision of s. 119.07(1).

B. SUBSTANCE ABUSE TREATMENT RECORDS

1. Section 397.501(7)(a), Florida Statutes provides that “the records of service providers which pertain to the identity, diagnosis, and prognosis of and service provision to any individual client are confidential” in accordance with chapter 397 and with applicable federal confidentiality regulations and are exempt from the public records provision of Chapter 119, Florida Statutes and s.24(a), Article 1 of the Florida Constitution. Such records may not be disclosed without the written consent of the youth to whom they pertain, except that appropriate disclosure may be made without such consent as follows:

a. To medical personnel in a medical emergency.

b. To service provider personnel if such personnel need to know the information in order to carry out duties relating to the provision of services to the client.

c. To the Secretary of the Department of Children and Families or the Secretary’s designee, for purposes of scientific research, in accordance with federal confidentiality regulations, but only upon agreement in writing that the youth’s name and other identifying information will not be disclosed.

d. In the course of review of records on service provider premises by persons who are performing an audit or evaluation on behalf of any federal, state, or local government agency, or third-party payer providing financial assistance or reimbursement to the

service provider. However, reports produced as a result of such audit or evaluation may not disclose youths names or other identifying information and must be in accord with federal confidentiality regulations.

e. Upon court order based on application showing good cause for disclosure.

f. For reporting of incidents of suspected child abuse and neglect to the appropriate state or local authorities as required by law. (See 5. below).

2. A minor acting alone has the legal capacity to voluntarily apply for and obtain substance abuse treatment. Any written consent for disclosure may be given only by the minor client. This restriction includes, but is not limited to, any disclosure of youth identifying information to the parent, legal guardian, or custodian of a minor youth for the purpose of obtaining financial reimbursement.

3. When the consent of a parent, legal guardian, or custodian is required under Chapter 397 in order for a minor to obtain substance abuse treatment, any written consent for disclosure must be given by both the minor and the parent, legal guardian, or custodian.

Requirements for parental consent are in addition to consent by the youth.

4. The restrictions on disclosure of section 397.501(7) do not apply to communications from provider personnel to law enforcement officers which:

a. Are directly related to a youth’s commission of a crime on the premises of the provider or against provider personnel or to a threat to commit such a crime; and

b. Are limited to the circumstances of the incident, including the client status of the youth committing or threatening to commit the crime, that youth’s name and address, and that youth’s last known whereabouts.

5. Section 397.50(7) F.S., provides the following:

“The restrictions on disclosure and use in section 397.501(7) do not apply to the reporting of incidents of suspected child abuse and neglect to the appropriate state or local authorities as required by law. However, such restrictions on disclosure continue to apply to the original substance abuse records maintained by the provider, including their disclosure and use for civil or criminal proceedings which may arise out of the report of suspected child abuse and neglect.”

6. Any answer denying a request for a disclosure of client records must be made in a way that will not affirmatively reveal that a youth has been, or is being diagnosed or treated for substance abuse.