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Prosecutors: Caseworkers withholding child toxicology tests

January 19, 2018

HELENA, Mont. (AP) — The Division of Child and Family Services is not following a state law that requires it to release the results of toxicology tests performed on children in cases where they are suspected to have been exposed to illegal drugs, state prosecutors argue.

Laura Smith, deputy director of the Department of Public Health and Human Services, told a legislative interim committee Friday that the agency is seeking clarification about whether federal law allows them to release the test results without a court order.

The Montana Legislature passed a law in 2013 requiring disclosure of records in child abuse cases to law enforcement and prosecutors if a child was exposed to the manufacture or distribution of dangerous drugs. In 2017, lawmakers extended that requirement to cases in which children were suspected of having been exposed to illegal drugs.

Lewis and Clark County Attorney Leo Gallagher said Friday that the agency hadn’t followed the 2013 law either, forcing prosecutors to find other ways to prove a child had been exposed to illegal drugs.

Sen. Eric Moore, who sponsored the second bill, noted that the agency didn’t raise the federal privacy concerns while the legislation was being discussed.

“We as a legislature are wondering why legislative intent isn’t being carried out,” Moore said during a meeting of the Children, Families, Health, and Human Services Interim Committee. “Our intent was to facilitate the prosecution of those who are committing crimes against children.”

Smith said the agency was not trying to obstruct investigations but wants to make sure disclosure wouldn’t jeopardize $13 million in federal funding. The federal Substance Abuse and Mental Health Services Administration is receiving requests for similar clarifications from other states.

“We share the county attorneys’ concerns about children,” Smith said. “We are working to get to ‘yes’ on this.”

The issue of drug-exposed children in Montana is growing. Montana has 3,925 children in foster care — up from 3,300 in December 2016. About two-thirds of the foster care placements are due to parental drug use, health officials have said.

A state health department attorney issued a memo in July 2017, shortly after Moore’s bill took effect, arguing that it did not require the release of toxicology reports, which it considered confidential under federal law. The memo argued the “results of an investigation” meant the caseworker could disclose that they had concluded there was reasonable cause to believe that a child has been exposed to illegal drugs or paraphernalia. The memo said law enforcement officers or prosecutors could seek a court order to obtain the test results.

Gallagher and Custer County Attorney Wyatt Glade told lawmakers that the agency is misinterpreting a federal law that restricts disclosure of patient records in relation to substance abuse prevention or rehabilitation that is conducted or regulated by a federal agency.

Glade argued the children are not patients, but victims, and that caseworkers are not providing substance abuse treatment. He also notes the federal privacy law does not apply to reporting suspected child abuse and neglect to state or local authorities.

Gallagher said he understands the agency is concerned that turning over the toxicology test results might interfere with its efforts to reunite families, but he said it prevents adequate advocacy on behalf of those who are abused and delays the prosecution of crimes against children.

Moore’s bill is meant to get the information “out to those that can make a difference in the child’s life,” Gallagher said.

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