OAR 413-010-0076: Considerations and Process in Determining Disclosure of a Record of Sexual Orientation, Gender Identity or Gender Expression

(1) When a child makes a statement that meets the definition of a record of sexual orientation, gender identity or gender expression to a Department employee, the employee will identify in written records that the information must remain confidential. (2) By default the written record of sexual orientation, gender identity or gender expression must remain confidential unless: (a) The Department determines, in written findings, that failure to disclose the record is reasonably likely to jeopardize the child’s safety or well-being; (b) The Department determines, in written findings, that disclosure of the record is necessary to provide services to the child or the child’s family; (c) The child consents to the disclosure. (3) A child , in consultation with their attorney, if applicable may provide verbal or written consent to the disclosure of a record of sexual orientation, gender identity or gender expression to their caseworker when: (a) The child is age 14 or older, and (b) There are no significant limitations in intellectual functioning and adaptive behavior documented for the child that impacts the child's competency to consent. (4) Consent must be documented by the child’s caseworker, including the date consent was provided, in the child’s written records. (5) When a child has not consented to the disclosure of a record of sexual orientation, gender identity or gender expression or the child is unable to consent for the reasons identified in subsection (3) of this rule, the Department caseworker for the child may, in consultation with the child’s attorney, determine there is a need for disclosure if: (a) Failure to disclose the record is reasonably likely to jeopardize the child’s safety or well-being; or (b) Disclosure of the record is necessary to provide services to the child or the child’s family. (6) When the caseworker determines that one of the conditions outlined in subsection (5) of this rule are met, the caseworker must consult with their supervisor and consider the following: (a) The impact to the child’s emotional or mental wellbeing; (b) The impact to child’s physical wellbeing; or (c) What factors indicate that disclosure is necessary to provide services to the child. (7) If the caseworker’s supervisor and the child’s attorney are in agreement that disclosure is necessary when a child is unwilling or unable to consent, the caseworker must document in written findings the applicable reasons for disclosure listed in subsection (5) of this rule and the date disclosure was agreed upon. (8) If the child’s attorney is not in agreement with the disclosure, the Child Welfare Program Manager will make the final determination as to whether the written findings justify the necessity for disclose and approve the disclosure. If the Child Welfare Program Manager approves the disclosure, the caseworker must inform the child's attorney of the decision within a reasonable time to allow the attorney to request a court hearing if needed. If the Child Welfare Program Manager approves the disclosure, the caseworker must inform the child's attorney of the decision within a reasonable time to allow the attorney to request a court hearing if needed.