Okla. Admin. Code § 75:30-5-4

Current through Vol. 42, No. 4, November 1, 2024

Section 75:30-5-4 - Client confidentiality

(a) Protecting the confidentiality of human sex trafficking victims is critical to protecting their safety and establishing trust. Case or client records, files or notes, of a certified program for adult victims of human sex trafficking shall be confidential and shall only be released under certain prescribed conditions pursuant to Oklahoma law (74 O.S. § 18p-3).

(b) The program shall have written policies and procedures to ensure confidentiality of client information and identity of the program's location and govern the disclosure of information including verbal disclosure contained in client records. When a client record is established, the program shall discuss the confidentiality requirements and limitations with each client and maintain documentation in the client record that they have reviewed the circumstances under which confidential information may be revealed. Assisting human sex trafficking victims requires the release of confidential information more often, and to more organizations, than when assisting non-trafficked victims. This is particularly true if the victim is seeking certification from HHS or ORR. Staff or volunteers should always obtain the informed, written consent of the victim when relaying confidential information to any person, including law enforcement, federal prosecutors, state attorneys, victim advocates and social services agencies. The written consent forms must be translated into the victim's native language, state the name of the person or organization receiving the information, and contain an expiration date.

(c) The human sex trafficking program must comply with both the state and federal laws that govern confidentiality and any exceptions to those laws.

(1)State Law: Case or client records, files or notes, of a human sex trafficking program shall be confidential and shall only be released under certain prescribed conditions (74 O.S. § 18p-3):

(A) The case records, case files, case notes, client records, or similar records of a human sex trafficking program certified by the Attorney General or of any employee or trained volunteer of a program regarding an individual who is residing or has resided in such program or who has otherwise utilized or is utilizing the services of any human sex trafficking program or counselor shall be confidential and shall not be disclosed;

(B) For purposes of this subsection, the term "client records" shall include, but not be limited to, all communications, records, and information regarding clients of human sex trafficking programs; and

(C) The case records, case files, or case notes of programs specified in paragraph 1 of this subsection shall be confidential and shall not be disclosed except with the written consent of the individual, or in the case of the individual's death or disability, of the individual's personal representative or other person authorized to sue on the individual's behalf or by court order for good cause shown by the judge in camera.

(2)Federal Law:

(A) The Violence Against Women Act universal grant conditions regarding confidentiality, Section 3 of VAWA, 34 USC § 12291(b)(2) provides, in part: In order to ensure the safety of adult, youth, and child victims of domestic violence, dating violence, sexual assault, or stalking, and their families, grantees and subgrantees shall protect the confidentiality and privacy of persons receiving services. Grantees and subgrantees shall not: disclose, reveal, or release any personally identifying information or individual information collected in connection with services requested, utilized, or denied through grantee and subgrantee programs, regardless of whether the information has been encoded, encrypted, hashed or otherwise protected; or disclose, reveal, or release individual client information without the informed, written, reasonably time-limited consent of the person (or in the case of an unemancipated minor, the minor and the parent or guardian or in the case of legal incapacity, a court-appointed guardian) about whom information is sought, whether for this program or any other Federal, State, tribal, or territorial grant program, except that consent for release may not be given by the abuser of the minor, incapacitated person, or the abuser of the other parent of the minor. If a minor or a person with a legally appointed guardian is permitted by law to receive services without the parent's or guardian's consent, the minor or person with a guardian may release information without additional consent. If release of information is compelled by statutory or court mandate, grantees and subgrantees shall make reasonable attempts to provide notice to victims affected by the disclosure of information and take steps necessary to protect the privacy and safety of the persons affected by the release of the information. In no circumstances may an adult, youth, or child victim of domestic violence, dating violence, sexual assault, or stalking be required to provide a consent to release identifying information as a condition of eligibility for the services provided.

(B) The Family Violence Prevention and Services Act universal grant conditions on confidentiality, 42 USC 10401 et seq. provides, in part: Personally identifying information. The term personally identifying information has the meaning given the term in the Violence Against Women Act. In order to ensure the safety of adult, youth, and child victims of family violence, domestic violence, or dating violence, and their families, grantees and subgrantees under this title shall protect the confidentiality and privacy of such victims and their families. Subgrantees shall not disclose any personally identifying information collected in connection with services requested (including services utilized or denied), through grantee and subgrantee programs; or reveal personally identifying information without informed, written, reasonably time-limited consent by the person about whom information is sought, whether for this program or any other Federal or State grant program, which consent shall be given by the person, except in the case of an unemancipated minor, the minor and the minor's parent or guardian; or in the case of an individual with a guardian, the individual's guardian; and may not be given by the abuser or suspected abuser of the minor or individual with a guardian, or the abuser or suspected abuser of the other parent of the minor. If release of information is compelled by statutory or court mandate grantees and subgrantees shall make reasonable attempts to provide notice to victims affected by the release of the information; and grantees and subgrantees shall take steps necessary to protect the privacy and safety of the persons affected by the release of the information.

(C) Victims of Crime Act regulations on confidentiality applying to grantees, 28 CFR § 94.115 provides in part: Sub-recipients of VOCA funds shall, to the extent permitted by law, reasonably protect the confidentiality and privacy of persons receiving services under this program and shall not disclose, reveal,or release any personally identifying information or individual information collected in connection with VOCA-funded services requested, utilized, or denied, regardless of whether such information has been encoded, encrypted, hashed, or otherwise protected; or individual client information, without the informed, written, reasonably time limited consent of the person about whom information is sought, except that consent for release may not be given by the abuser of a minor, incapacitated person, or the abuser of the other parent of the minor. If a minor or a person with a legally appointed guardian is permitted by law to receive services without a parent's (or the guardian's) consent, the minor or person with a guardian may consent to release of information without additional consent from the parent or guardian. If release of information is compelled by statutory or court mandate, SAAs or sub-recipients of VOCA funds shall make reasonable attempts to provide notice to victims affected by the disclosure of the information, and take reasonable steps necessary to protect the privacy and safety of the persons affected by the release of the information.

(D) Housing Assistance Emergency Solutions Grants, at 42 U.S.C. § 11375 (c)(5), require recipients to develop and implement procedures to ensure confidentiality of records pertaining to any individual provided family violence prevention or treatment services under this part and that the address or location of the family violence Program facilities project assisted under this part will not be made public without written authorization of the person or persons responsible for the operation of such Program facilities; and

(E) Stewart B. McKinney Homeless Assistance Act, at 42 U.S.C.§ 1130163, mandates that any victim service provider that is a recipient or subgrantee shall not disclose for purposes of the Homeless Management Information System (HMIS) any personally identifying information about any client. Subgrantees may be required to disclose for purposes of HMIS non-personally identifying information that has been de-identified, encrypted, or otherwise encoded. The Violence Against Women Act also contains a provision that specifies a domestic violence program provider shall not disclose any personally identifying information about any client to the Homeless Management Information System (HMIS).

(d) Compliance with 75:30-5-4 shall be determined by a review of the program's policies and procedures; and on-site observation of the handling and review of client records.

Okla. Admin. Code § 75:30-5-4

Added at 28 Ok Reg 1931, eff 7-11-11

Amended by Oklahoma Register, Volume 31, Issue 24, September 2, 2014, eff. 9/12/2014

Amended by Oklahoma Register, Volume 33, Issue 24, September 1, 2016, eff. 9/11/2016

Amended by Oklahoma Register, Volume 36, Issue 23, August 15, 2019, eff. 9/13/2019

Amended by Oklahoma Register, Volume 38, Issue 24, September 1, 2021, eff. 9/11/2021

Amended by Oklahoma Register, Volume 41, Issue 21, July 15, 2024, eff. 7/25/2024

¹ Section 75:30-3-4, as referenced in subsection (c), was editorially renumbered to 75:30-5-4.