The state health department and county attorneys are wrangling over whether some records for children suspected of having been exposed to drugs should be turned over for use in criminal investigations without holding a court hearing.
A law passed out of last year's legislative session requires the release or disclosure of records obtained by child protective services when a child has been exposed to a dangerous drug.
But the Department of Public Health and Human Services has not turned over toxicology reports for children suspected of being exposed to drugs or paraphernalia because of concerns it would violate a privacy provision of federal law, and doing so could put federal funding at risk.
The department said Friday it is working with the federal government to get clarity on what information it is able to release and hopes to have an answer soon. The department also pointed out that county attorneys are able to pursue the information by holding a court hearing.
Two county attorneys at a legislative interim committee hearing Friday countered that those processes take a lot of time and resources and aren’t necessary based on their reading of the federal law.
At the root of the problem is Senate Bill 229, passed by the Legislature in early 2017 and implemented July 1. The bill says the department shall disclose the results of an investigation if there is reasonable cause to suspect a child has been exposed to drugs or drug paraphernalia.
As a part of investigations into reports of child abuse or neglect, workers with the Child and Family Services Division of the state health department may have toxicology tests done on children as a part of initiating a civil action that could include removing a child from their home while working toward reunification with their parents or termination of parental rights.
A county attorney would want those toxicology records as part of a separate criminal action against parents. Exposing a child to drugs or drug paraphernalia is illegal.
The Child and Family Services Division has a stated mission of reuniting children with their parents whenever possible. It can initiate civil proceedings when a child has to be removed from a home because of safety issues, but does not pursue criminal cases.
Child and Family Services workers still report suspected drug use to law enforcement; what’s at issue is turning over toxicology records.
At risk is about $13 million in federal money that funds a variety of programs, said Laura Smith, deputy director of the health department.
“We are not trying to be obstructionist, but we want to make sure we are following federal law,” she said, adding that other states are also seeking guidance on the issue.
Wyatt Glade, county attorney in Custer County, sent a memo to the health department Jan. 4 saying he believes the health department must share the toxicology report because the federal law the department is concerned about does not apply. Even if it did, he wrote, there is an exception that allows for disclosure of records when states have a law dictating that.
“Those test results, which would provide very powerful evidence in prosecution .... those test results were not being passed along to law enforcement.”
On Friday, Glade told the interim Children, Families, Health and Human Services legislative committee that having to hold a court hearing to have the records released causes an “unacceptable delay in the flow of information from (the health department) to law enforcement. In larger jurisdictions it’s going to cripple the application of this law."
The interim committee on Friday also voted to ask House and Senate leadership to request the state attorney general to provide an opinion on the issue. The vote was 7-1, with Sen. Mary Caferro, the committee chair and Democrat from Helena, voting no. The request would be rescinded if the health department reached a resolution before an opinion could be issued.