Code of Massachusetts Regulations
651 CMR - EXECUTIVE OFFICE OF ELDER AFFAIRS
Title 651 CMR 5.00 - Elder Abuse Reporting and Protective Services Program
Section 5.20 - Privacy and Confidentiality Requirements

Universal Citation: 651 MA Code of Regs 651.5

Current through Register 1531, September 27, 2024

(1) Generally. All records containing Personal Data concerning an Elder for whom a report of alleged Abuse has been made under M.G.L. c. 19A, § 15 to the Department, the Elder Abuse Hotline, guardianship agencies, Protective Services Agencies or other agencies holding Personal Data shall not be public records and shall be governed by M.G.L. c. 66A, 801 CMR 3.00: Privacy and Confidentiality and 651 CMR 5.00.

(2) Agreement with Holder of Personal Data. The Department shall enter into an agreement with the provider of the Elder Abuse Hotline service, each guardianship agency, and each Protective Services Agency whereby each Agency agrees to act as a Holder of Personal Data and comply with the aforementioned regulations regarding the holding of Personal Data as a result of performing a governmental or public function or purpose.

(3) Separate Personal Data System. Each Holder of Personal Data under the Protective Services Program shall establish a Personal Data System separate and distinct from any other records of information it may hold in the usual course of business in compliance with the legal requirements identified in 651 CMR 5.20(1) regarding Personal Data.

(4) Access to Personal Data by Third Parties. Each Holder maintaining Personal Data shall not allow any agency or individual other than the employees of the Department or other Holder agency under the Protective Services Program to gain access to Personal Data unless such access is authorized by statute or regulations, or is authorized by the Data Subject whose Personal Data is sought except for the following:

Medical or psychiatric data may be made available to a physician treating a Data Subject upon the request of said physician, if a medical or psychiatric emergency arises which precludes the Data Subject's giving approval for the release of such data, but the Data Subject shall be given notice of such access upon termination of the emergency. The identity of the reporter shall be deleted prior to the release of any such information.

(5) Discretionary Release of Information. Subject to the limitations established in 651 CMR 5.08(2)(c)2., the Department may release or direct a Protective Services Agency to release any records, documents, data, information, or any portion thereof to a relevant government agency in furtherance of efforts to serve a compelling public interest to protect the health, safety, and welfare of Elders; for the purpose of conducting an effective Investigation; or for the purpose of providing effective Protective Services Casework, subject to the following limitations:

(a) The exercise of the Department's discretion shall be based upon a balancing of the respective interests of the public in the protection of the privacy of those who may be affected by the release of information, and the public interest in protecting vulnerable Elders within the Commonwealth.

(b) The discretionary release of information shall be limited to only that portion of the information necessary to satisfy the public interest underlying the release of the information:

(c) Personal Data of Data Subjects and of reporters of abuse that are contained in such records shall be redacted from the records when disclosure of such information is not required by the public interest underlying the discretionary release of such records; and

(d) Prior to the release of any such records containing Personal Data information pursuant to 651 CMR 5.20(5)(c), the general counsel of the Department or his or her designee shall review the records and remove any portion of the records which:
1. may be considered attorney work product or privileged; and

2. may be personally identifying or confidential information regarding any third party data subject and the individual who reported the abuse to the Protective Services Program.

(6) Response to Requests for and/or Production of Documents in Criminal Cases. Any party to a criminal action who seeks testimony and/or production of documents other than those documents previously released by the Department or a Protective Services Agency to the District Attorney pursuant to 651 CMR 5.19(3) shall do so by subpoena. Upon receipt of the subpoena, and prior to the date set therein for appearance or production of documents in Court, the employee of the Department or Protective Services Agency subject to such subpoena shall consult with his or her supervisor and legal counsel.

The Department or Protective Services Agency may, in its discretion, move to quash such subpoena, in whole or in part if, in its opinion the testimony and/or production of documents would not be in the best interests of the Elder. If such testimony and/or production of documents is provided, it shall not include the identity of the reporter of Abuse under M.G.L. c. 19A, § 15.

651 CMR 5.19(6) shall apply to cases in which the above mentioned testimony and/or production of documents has been sought as a result of a report to the District Attorney pursuant to M.G.L. c. 19A, § 15(b) or 18(a) or in other criminal cases.

(7) The Department and any designated Protective Services Agency shall, in addition to 651 CMR 5.20, comply with 801 CMR 3.00: Privacy and Confidentiality.

(8) Defense to Civil or Criminal Action. No person providing notification or information to a District Attorney or testimony in Court pursuant to M.G.L. c. 19A, § 23 shall be liable in any civil or criminal act by reason of such action.

(9) Testimony Involving Release of Personal Data Allowed in Certain Matters. No provision of M.G.L. c. 66A regarding the confidential holding of Personal Data by the Department or Protective Services Agencies, or any other provision of law relating to confidential data or confidential communications shall prohibit the Department, by its appropriate employees, or any Protective Services Agency, by its appropriate employees from testifying in any of the following types of judicial proceedings involving the client where the employee has acquired the information which is the subject of his or her testimony while conducting an Investigation or providing Protective Services in accordance with M.G.L. c. 19A, § 18:

(a) A petition for a Protective Order through the Court, or for the appointment of a Guardian or Conservator under M.G.L. c. 19A, § 20(a);

(b) A petition seeking an Order for Emergency Protective Services under M.G.L. c. 19A, § 20(b);

(c) A petition seeking the appointment, discharge, or other order regarding a Guardian, Conservator, or guardian ad litem under M.G.L. c. 190B;

(d) A complaint requesting protection from abuse filed under M.G.L. c. 209A, § 3, or any subsequent Court hearing involving such complaint.

Any party other than the Department, to a legal action set forth in 651 CMR 5.20(9)(a) through (c), or (d), who seeks testimony and/or the production of documents from the Department or any Protective Services Agency in accordance with this section shall do so by subpoena, except as allowed in 651 CMR 5.20(10).

The Department, or a Protective Services Agency may, in its discretion, move to quash such subpoena seeking such testimony or the release of such documents if, in its opinion such testimony or production of documents would be contrary to the best interests of the Abused Elder(s) in question. If such testimony, or the production of documents is provided, it shall not include the identity of the reporter of Abuse under M.G.L. c. 19A, § 15.

(10) Testimony or Release of Personal Data in Other Civil Matters. Whenever any Department or Protective Services Agency documents including that in the form of testimony are sought by compulsory legal process in any civil process other than those set forth in 651 CMR 5.20(9), the Department or Protective Services employee shall consult with his or her supervisor and legal counsel as soon as possible following receipt of such subpoena or other compulsory process. The Department or Protective Services Agency shall not release such documents until the Department or Protective Services Agency has notified each Data Subject identified in the documents so that he or she may take responsive action if so desired. Such efforts at notification may be oral or written, including oral notice by telephone. Such efforts at notification shall be documented.

The Department or Protective Services Agency may, in its discretion, move to quash such subpoena, in whole or in part if, in its opinion the testimony and/or production of documents would not be in the best interests of the Elder. If such testimony and/or production of documents is provided, it shall not include the identity of the reporter of Abuse under M.G.L. c. 19A, § 15.

(11) Access to Confidential Records During Court Proceedings.

(a) In all proceedings brought under M.G.L. c. 19A, §§ 20(a) and 20(b) or c. 190B in which the Department or Protective Services Agency is a party, or holds a Protective Services case record on the Elder who is the subject of the petition, a copy of the entire Protective Services case record excluding the identity of the reporter and including the pertinent M.G.L. c. 19A, § 15(a), 15(b) or 15(c) reports, may be made available on request to any of the following:
1. A Court appointed guardian ad litem;

2. An officer of the Court assigned by the judge;

3. An attorney for the Department, Protective Services Agency or Elder; or

4. An attorney for the petitioner seeking: appointment as a fiduciary, or seeking an order under M.G.L. c. 19A, § 20(a); an order under M.G.L. 19A, § 20(b); guardianship or conservatorship of the Abused Elder under M.G.L. c. 190B, except where there is Reasonable Cause to Believe that said petitioner is responsible for a Reportable Condition to the Elder who is the subject of the petition, or where the Designated Protective Services Agency is engaged in determining whether or not there is Reasonable Cause to Believe that said petitioner is responsible for such Reportable Condition.

(b) The written request shall contain a statement from the requesting party that any material disclosed shall not be further duplicated nor divulged to any person not a party to the particular proceeding, unless by order of the Court. Reasonable fees for copying records shall be charged.

(c) Whenever the Department or a Protective Services Agency has reason to believe that disclosure to any individual named above of all or a portion of the Protective Services case record would be contrary to the Elder's best interest, the Department or Protective Services Agency shall bring to the Court's attention the reason(s) for denying access.

(12) Expungement of Reports and Investigations. The Department and Protective Services Agencies shall expunge all Personal Data within its control regarding a Data Subject where a report of alleged Abuse cannot be substantiated. The Holder shall, within three years of such determination:

(a) Destroy said report and any other records containing Personal Data created because of the receipt of said report; or

(b) Physically remove therefrom all personal identifiers; provided however, that the agency holding Personal Data obligated to investigate may create and hold whatever statistical records it needs for purposes of planning and reporting.

(13) Protective Services Case Records which have been closed and not reopened shall be retained by a Protective Services Agency for a period of seven years after which time the case records may be destroyed by a Protective Services Agency.

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