Could Maine's legislative program-evaluation office (OPEGA) lawfully review confidential child protective services case files held by DHHS?
Plain-English summary
Maine's Office of Program Evaluation and Government Accountability (OPEGA), the legislature's auditing arm, asked whether it could review confidential child protective services (CPS) case files held by the Department of Health and Human Services (DHHS) for purposes of a program-wide evaluation. Federal funding rules require states to keep CPS records confidential and to limit disclosure to a closed list of permissible recipients. The question was whether OPEGA's audit/oversight function fit one of the listed exceptions.
Attorney General Steven Rowe concluded that it did. The two main federal statutes governing the records, 42 U.S.C. § 671(a)(8) (foster care and adoption assistance) and 42 U.S.C. § 5106a (child abuse and neglect), each contain an exception for audits and similar activities conducted in connection with administering the state plan, and for federal, state, or local government oversight officials. The Maine implementing statute, 22 M.R.S.A. § 4008(3)(D), expressly requires DHHS to disclose relevant CPS information to "an appropriate state executive or legislative official with responsibility for child protection services," subject to redaction of personally identifying information except as necessary to the official's functions. Because OPEGA's enabling statute charges it with program evaluation that includes oversight of child-protection programs, and because OPEGA's own confidentiality rules (3 M.R.S.A. § 997(4) and (5)) require staff to handle obtained information with the same protections it had at the originating agency, the AG read the access framework as compatible.
The opinion added two important qualifications. First, the analysis covered records governed by the two main federal CPS statutes. Other federal confidentiality regimes that might cover documents inside a CPS case file, especially Medicaid records (42 U.S.C. § 1396a(a)(7), 42 CFR § 431.302) and substance abuse treatment records (42 U.S.C. §§ 290dd-2, 290ee-3 and 42 CFR § 2.53), have narrower exceptions and might not permit OPEGA access without further analysis. Second, federal Administration for Children and Families had not yet weighed in. The AG noted that the opinion had been ready for two months pending a federal response and was being released without it because OPEGA's evaluation could not wait. If ACF later disagreed, those issues could be revisited.
Operationally, the opinion required OPEGA to follow the procedures in § 997(4)(A): a written statement of necessity for access, consultation with DHHS on methods to identify and protect privileged information, compliance with DHHS security procedures (§ 997(4)(C)), and treatment of all working papers as confidential under § 997(5).
Currency note
This opinion was issued in 2005. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Both the federal CPS confidentiality statutes and Maine's child-protection records statutes have been amended several times since 2005, and federal regulations on Medicaid (HIPAA-era) and substance abuse records (Part 2) have been substantially restructured.
Background and statutory framework
OPEGA was created in 2003 to give the Legislature an in-house program-evaluation capability. It operates under the oversight of the Government Oversight Committee (GOC), a joint legislative committee. The OPEGA statute distinguishes between what the Committee can see and what the staff can see. Information available to the Committee is governed by Title 3, chapter 21 (legislative investigative committees) and by the Freedom of Access Law (FOAL), so records that are confidential under FOAL are not available to the Committee. Information available to the staff is broader: under § 997(4), state agencies and other entities subject to evaluation must give OPEGA staff access to information that is privileged or confidential under FOAL, with the staff bound to maintain that confidentiality at the same level as the originating agency.
The federal statutes work like this. Section 671(a)(8) of Title 42 conditions federal foster care and adoption assistance funds on a state plan that "restrict[s] the use of or disclosure of information concerning individuals" to specified purposes. Clause (D) lists "any audit or similar activity conducted in connection with the administration of any such plan or program by any governmental agency which is authorized by law to conduct such audit or activity." The statute also expressly forbids disclosure "to any committee or legislative body" except an audit-clause-(D) recipient. Section 5106a of Title 42 sets confidentiality requirements for state plans funded under the Child Abuse Prevention and Treatment Act (CAPTA) and lists the categories of permitted recipients, including "Federal, State, or local government entities, or any agent of such entities" performing program-administration functions, and "other entities or classes of individuals statutorily authorized by the State to receive such information pursuant to a legitimate State purpose."
Maine implements those obligations through 22 M.R.S.A. §§ 4007, 4008 and 4008-A, which make CPS records confidential and unauthorized disclosure a criminal offense. Section 4008(3)(D) parallels the federal audit exception by requiring disclosure to "an appropriate state executive or legislative official with responsibility for child protection services," with personally identifying information protected unless necessary.
The pertinent Law Court guidance is In Re Bailey M., 2002 ME 12, where the court recognized that the federal CPS confidentiality statutes inform the construction of the parallel Maine statute. There were no Maine cases at the time directly construing whether a legislative program-evaluation office fit the audit exception. The AG drew the inference from the structure of the federal exception, the parallel structure of § 4008(3)(D), and OPEGA's statutory role and confidentiality protections.
Common questions
Q: What was OPEGA actually trying to do?
A: Conduct a program-wide evaluation of Maine's child-protective-services program, which under its enabling statute meant reviewing how DHHS was carrying out CPS responsibilities. Doing that meaningfully required access to actual case files, not just summary statistics.
Q: Why did federal law matter for a state legislative review?
A: Because Maine's CPS programs are funded in part by federal grants, and those grants come with strings: the state plan has to maintain the confidentiality of records consistent with federal statutes. State law cannot expand access in a way that violates the federal confidentiality requirements without putting federal funding at risk.
Q: Did the AG say OPEGA could see anything in the file?
A: No. The opinion specifically flagged that other federal confidentiality regimes might cover individual documents within a CPS case file, particularly Medicaid records and substance abuse treatment records. Those have narrower exceptions and would have to be assessed individually. The AG's "yes" was for records governed by the two main federal CPS statutes and the parallel Maine statute.
Q: What had to happen before OPEGA actually walked in to look at files?
A: Section 997(4)(A) required OPEGA to give DHHS a written statement that access was necessary and to consult with DHHS on methods to identify and protect privileged information. Once on site, OPEGA staff had to comply with DHHS's own security procedures (§ 997(4)(C)). Anything OPEGA pulled into its working papers became confidential under § 997(5) and could not be disclosed to anyone other than DHHS.
Q: What happens if ACF (the federal agency) later disagreed with the AG's reading?
A: The opinion expressly preserved that possibility. The AG had been waiting for ACF guidance for two months and decided to issue the opinion without it because OPEGA could not stand still. If ACF later took a different position, the opinion said, "those issues can be addressed once that response is received."
Q: Could the legislative GOC see the same records?
A: No. Under § 994(11), the Committee's access is governed by FOAL, so confidential records are not available to the Committee directly. The records flow only to OPEGA staff (subject to § 997's safeguards), and OPEGA's reports back to the Committee have to scrub identifying information except as necessary to the report's purpose.
Citations and references
Maine statutes:
- 3 M.R.S.A. §§ 991-997 (OPEGA enabling statute)
- 3 M.R.S.A. § 994(11) (Committee access governed by FOAL)
- 3 M.R.S.A. § 997(4) (staff access; procedural requirements; redisclosure limits)
- 3 M.R.S.A. § 997(5) (working papers confidential)
- 1 M.R.S.A. ch. 13 (Freedom of Access Law)
- 22 M.R.S.A. §§ 4007, 4008, 4008-A (Maine CPS record confidentiality)
- 22 M.R.S.A. § 4008(3)(D) (mandatory disclosure to oversight officials)
- 5 M.R.S.A. § 199 (AG opinion authority)
Federal statutes and regulations:
- 42 U.S.C. § 671(a)(8) (Title IV-E foster care/adoption confidentiality, with audit exception in clause (D))
- 42 U.S.C. § 5106a(b)(2)(A)(viii) (CAPTA confidentiality)
- 42 U.S.C. § 1396a(a)(7) (Medicaid use-and-disclosure restriction)
- 42 U.S.C. §§ 290dd-2 and 290ee-3 (substance abuse treatment records)
- 42 CFR § 431.302 (Medicaid plan administration interpretation)
- 42 CFR § 2.53 (substance abuse records)
Cases:
- In Re Bailey M., 2002 ME 12, ¶ 17 (Maine federal-state CPS confidentiality interplay)
- 1984 Me. AG Lexis 11 (Apr. 27, 1984) (cited for proposition that county commissioners exercise budget authority within legislatively-set bounds)
Source
- Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
- Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/2005/ag_20050923.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.
G. STEVEN ROWE
ATTORNEY GENERAL
STATE OF MAINE
OFFICE OF THE ATTORNEY GENERAL
6 STATE HOUSE STATION
AUGUSTA, MAINE 04333-0006
Telephone: (207) 626-8800
September 23, 2005
Beth L. Ashcroft, Director
Office of Program Evaluation and Government Accountability
82 State House Station
Augusta, ME 04333-0082
Re: Request for Opinion Regarding Access to Privileged and Confidential DHHS Child Protective Services Files by OPEGA
Dear Ms. Ashcroft:
By letter dated June 15, 2005, you requested an opinion "on whether or not OPEGA is authorized to access privileged and confidential files and records maintained by DHHS related to child protective services." Access to these records is requested by the Office of Program Evaluation and Governmental Accountability ("OPEGA") for purposes of conducting "reviews of activities related to child protective services provided by the State."
Because the response to your question is governed in significant part by the interpretation of federal statutes and regulations concerning confidentiality requirements that states must meet in order to qualify for federal funding of child protection and foster care activities, we forwarded your question to the Administration of Children and Families ("ACF") in the federal Department of Health and Human Services in June. This opinion has been ready to release, but for the response of ACF, for more than two months. The response to regular status inquiries of ACF by our Office has led us to believe that an answer would soon be forthcoming; however, the response to our most recent inquiry was that several more weeks would be required. In light of the fact that you are at a point in your review where access to documents held by Maine's Department of Health and Human Services ("DHHS") is needed, I have decided to issue this opinion without the input of ACF. To the extent that the ACF response supplements or conflicts in any way with this opinion, those issues can be addressed once that response is received.
For the reasons discussed in detail below, we believe that federal and state law confidentiality requirements specific to child protection records contain an exception that permits the Director and staff of OPEGA to access these records provided that they are maintained in confidence in a manner consistent with the OPEGA statute. To the extent that there are records in the particular files that you ultimately select for review that are subject to other federal law confidentiality requirements, additional federal laws may need to be reviewed to determine whether they contain a comparable exception.
The OPEGA Statute
OPEGA is established and governed by Title 3, M.R.S.A., §§ 991-997 (Supp. 2004) ("the OPEGA statute"). OPEGA operates under the oversight of the Governmental Oversight Committee ("the Committee"), a joint legislative committee established by Joint Rule 371 of the Maine Legislature. Under § 991, OPEGA is authorized to conduct program evaluations of agencies and programs of state government, and, when directed by the Committee, to evaluate various local governmental units. OPEGA is also charged with ensuring that public funds provided to local governmental units are expended in accordance with the purposes for which they were appropriated, allocated, or contracted, and, when authorized by the Committee, to examine any state contractor financed in whole or in part by public funds as well as any expenditure of public funds by any public official or employee.
The OPEGA statute contains a number of provisions that address access to records, with different standards applicable to the Committee, as distinguished from those applicable to the OPEGA staff. Title 3, M.R.S.A., § 994(11) provides that information available to the Committee is governed by Title 3, M.R.S.A., Chapter 21, which addresses legislative investigative committees, and by the Freedom of Access Law ("FOAL"), Title 1, M.R.S.A., Chapter 13 (1989 & Supp. 2004). As a result, records that are confidential under the FOAL are not available to the Committee.
In contrast, state agencies and other entities subject to program evaluation are required to give the OPEGA staff access to information that is privileged or confidential as defined by the FOAL, pursuant to 3 M.R.S.A. § 997(4). Privileged or confidential information obtained by the staff "is privileged or confidential to the same extent under law that that information would be privileged or confidential in the possession of the state agency or other entity providing the information." Further, "Privileged or confidential information obtained by the office during the course of a program evaluation may be disclosed only as provided by law and with the agreement of the state agency or other entity subject to the program evaluation that provided the information," § 997(4)(B).
The OPEGA statute also establishes procedures for obtaining and handling records that are designed to protect their confidential status. Before an evaluation begins, the staff is to "furnish a written statement of its determination that it is necessary for the office to access such records and consult with representatives of the state agency or other entity to discuss methods of identifying and protecting privileged or confidential information in those records." § 997(4)(A). If the staff access privileged or confidential information, they are required to comply with the security procedures for handling that information that have been established by the agency or entity holding the records, and must comply with those procedures if they incorporate excerpts from the information in their working papers. § 997(4)(C). Working papers, defined broadly by § 992(7) to include everything that is received by OPEGA, are themselves made confidential and may not be disclosed to any person other than the agency that supplied them. § 997(5).
In effect, the OPEGA statute creates an exception to state law confidentiality and privilege requirements by giving the staff the authority to review confidential or privileged information that is held by an agency or entity to the extent necessary to conduct a program evaluation. However, since state statutes cannot amend federal laws, the determination of whether a federal confidentiality statute might preclude access by OPEGA requires a review of its terms. In the case of child protection services provided by the State, two separate federal statutes are relevant. A review of the pertinent provisions of those statutes is helpful to our analysis.
Relevant Federal Statutes and Regulations and the Maine Implementing Statute
Maine receives federal grant funding for its child protection programs from two primary sources. First, under Title IV (Parts A-E) of the Social Security Act, 42 U.S.C. §§ 620 et seq., grants are available for child welfare services such as foster care and adoption assistance, as well as family preservation and support services. Second, under Title 42 U.S.C. § 5106a funds are available for services such as intake, assessment, screening, investigations of abuse and neglect reports, case management, training, and technology, among others. To be eligible for these grants, the State must submit a plan that explains how the funds will be used. Each of these statutes contains numerous requirements that participating states must satisfy in order to receive federal funds, and each contains provisions governing confidentiality of records.
The confidentiality provisions of 42 U.S.C. § 671(a)(8) governing the state plan for foster care and adoption assistance require that the plan restrict the disclosure of information to specific identified purposes, as follows:
a. Requisite features of State plan. In order for a State to be eligible for payments under this part [42 U.S.C. §§ 670 et seq.], it shall have a plan approved by the Secretary which—
(8) provides safeguards which restrict the use of or disclosure of information concerning individuals assisted under the State plan to purposes directly connected with (A) the administration of the plan of the State approved under this part [42 USCS §§ 670 et seq.], the plan or program of the State under part A, B, or D of this title [42 USCS §§ 601 et seq., 620 et seq., 651 et seq.] or under title I, V, X, XIV, XVI [42 USCS §§ 301 et seq., 701 et seq., 1201 et seq., 1351 et seq., 1381 et seq.] (as in effect in Puerto Rico, Guam, and the Virgin Islands), XIX, or XX [42 USCS §§ 1396 et seq., 1397 et seq.], or the supplemental security income program established by title XVI [42 USCS §§ 1381 et seq.], (B) any investigation, prosecution, or criminal or civil proceeding, conducted in connection with the administration of any such plan or program, (C) the administration of any other Federal or federally assisted program which provides assistance, in cash or in kind, or services, directly to individuals on the basis of need, (D) any audit or similar activity conducted in connection with the administration of any such plan or program by any governmental agency which is authorized by law to conduct such audit or activity, and (E) reporting and providing information pursuant to paragraph (9) to appropriate authorities with respect to known or suspected child abuse or neglect; and the safeguards so provided shall prohibit disclosure, to any committee or legislative body (other than an agency referred to in clause (D) with respect to any activity referred to in such clause), of any information which identifies by name or address any such applicant or recipient; except that nothing contained herein shall preclude a State from providing standards which restrict disclosures to purposes more limited than those specified herein, or which, in the case of adoptions, prevent disclosure entirely.
42 U.S.C. § 671(a)(8) (emphasis added).
Additional requirements applicable to the state's plan appear in 42 U.S.C. § 5106a(b)(2)(A)(viii):
(2) Coordination. A State plan submitted under paragraph (1) shall, to the maximum extent practicable, be coordinated with the State plan under part B of title IV of the Social Security Act [42 USCS §§ 620 et seq.] relating to child welfare services and family preservation and family support services, and shall contain an outline of the activities that the State intends to carry out using amounts received under the grant to achieve the purposes of this title [42 USCS §§ 5101 et seq.], including—
(A) an assurance in the form of a certification by the chief executive officer of the State that the State has in effect and is enforcing a State law, or has in effect and is operating a statewide program, relating to child abuse and neglect that includes—
(viii) methods to preserve the confidentiality of all records in order to protect the rights of the child and of the child's parents or guardians, including requirements ensuring that reports and records made and maintained pursuant to the purposes of this Act [42 USCS §§ 5101 et seq.] shall only be made available to—
(I) individuals who are the subject of the report;
(II) Federal, State, or local government entities, or any agent of such entities, as described in clause (ix);
(III) child abuse citizen review panels;
(IV) child fatality review panels;
(V) a grand jury or court, upon a finding that information in the record is necessary for the determination of an issue before the court or grand jury; and
(VI) other entities or classes of individuals statutorily authorized by the State to receive such information pursuant to a legitimate State purpose.
42 U.S.C. § 5106a(b)(2)(A)(viii).
The terms of § 5106a are further detailed by rules found in 42 CFR § 1340.14(i):
(i) Confidentiality.
(1) The State must provide by statute that all records concerning reports and reports of child abuse and neglect are confidential and that their unauthorized disclosure is a criminal offense.
(2) If a State chooses to, it may authorize by statute disclosure to any or all of the following persons and agencies, under limitations and procedures the State determines:
(i) The agency (agencies) or organizations (including its designated multidisciplinary case consultation team) legally mandated by any Federal or State law to receive and investigate reports of known and suspected child abuse and neglect;
(ii) A court, under terms identified in State statute;
(iii) A grand jury;
(iv) A properly constituted authority (including its designated multidisciplinary case consultation team) investigating a report of known or suspected child abuse or neglect or providing services to a child or family which is the subject of a report;
(v) A physician who has before him or her a child whom the physician reasonably suspects may be abused or neglected;
(vi) A person legally authorized to place a child in protective custody when the person has before him or her a child whom he or she reasonably suspects may be abused or neglected and the person requires the information in the report or record in order to determine whether to place the child in protective custody;
(vii) An agency authorized by a properly constituted authority to diagnose, care for, treat, or supervise a child who is the subject of a report or record of child abuse or neglect;
(viii) A person about whom a report has been made, with protection for the identity of any person reporting known or suspected child abuse or neglect and any other person where the person or agency making the information available finds that disclosure of the information would be likely to endanger the life or safety of such person;
(ix) A child named in the report or record alleged to have been abused or neglected or (as his/her representative) his/her guardian or guardian ad litem;
(x) An appropriate State or local official responsible for administration of the child protective service or for oversight of the enabling or appropriating legislation, carrying out his or her official functions; and
(xi) A person, agency, or organization engaged in a bona fide research or evaluation project, but without information identifying individuals named in a report or record, unless having that information open for review is essential to the research or evaluation, the appropriate State official gives prior written approval, and the child, through his/her representative as cited in paragraph (i) of this section, gives permission to release the information.
In Maine, 22 M.R.S.A. §§ 4007, 4008 and 4008-A (2004 & Supp. 2004) have been enacted in fulfillment of the requirement imposed by 42 CFR § 1340.14(i)(1) that each state must provide by statute that all records concerning child abuse and neglect are confidential, and that their unauthorized disclosure is a criminal offense. (Copies of these statutes are attached.) Consistent with the terms of 42 U.S.C. § 671(a)(8)(D), Maine's § 4008(3)(D) permits confidential records to be provided, under appropriate limitations and procedures, for an audit or similar activity conducted in connection with the administration of the plan or program, and reads as follows:
- Mandatory disclosure of records. The department shall disclose relevant information in the records to the following persons:
D. An appropriate state executive or legislative official with responsibility for child protection services, provided that no personally identifying information may be made available unless necessary to that official's functions...
22 M.R.S.A. § 4008(3)(D).
Application of State and Federal Law to the OPEGA Evaluation
We have found no cases construing the federal statutory confidentiality provisions outlined above. Maine's Law Court has recognized that these federal statutes are relevant in construing Maine child protection confidentiality statutes. In Re Bailey M., 2002 ME 12, ¶ 17 (2002).
Of the two statutes, 42 U.S.C. § 5106a contains more liberal provisions for sharing information with government officials with program oversight responsibilities than does 42 U.S.C. § 671. However, the program evaluation function of OPEGA can reasonably be read to fit within the audit exceptions in both federal statutes, as well as the Maine statute.
It is important to note that this analysis relates to federal law confidentiality requirements that relate specifically to child protection records. Other federal confidentiality statutes that may apply to portions of the child protection files you seek to review may not contain exceptions sufficient to afford OPEGA access. For example, 42 U.S.C. § 1396a(a)(7) provides that state Medicaid agencies may only use or disclose individually identifiable health information for "purposes directly related to state plan administration." Federal Medicaid regulations interpret that phrase to mean information necessary to (1) establish eligibility, (2) determine the nature and amount of medical assistance, (3) provide services for recipients, or (4) conduct or assist in conducting an investigation, prosecution, or civil or criminal proceeding related to the Medicaid plan. 42 CFR § 431.302. Since the program evaluation OPEGA is embarking on does not concern a Medicaid program, there may be a question as to whether it is "related to the Medicaid plan" within the meaning of the regulations or is conducted for a purpose "directly related to state plan administration" within the meaning of the federal statute. Similar issues arise with respect to substance abuse treatment records, which are made confidential by two separate federal statutes and accompanying regulations. See 42 U.S.C. §§ 290dd-2 and 290ee-3, and 42 C.F.R. § 2.53. Again, the central question is determining whether an exception for audits applies to one undertaken outside the area of substance abuse services.
Until OPEGA has identified the files to be reviewed, it will not be possible to determine whether such other confidentiality statutes apply to the documents. Even if such documents are part of the files you seek to review, those particular documents may not be necessary for your purposes. As you are aware, the OPEGA statute, in § 997(4), establishes procedures whereby these issues can be addressed.
In summary, we believe that federal and state law confidentiality requirements specific to child protection records contain an exception that permits the Director and staff of OPEGA to access child protection records provided they are maintained in confidence in a manner consistent with the OPEGA statute.
G. Steven Rowe
Attorney General
GSR/elf