Section 5.0: Legal Issues

Part I: Guidelines for Delegate Agency Program Management and Administration

  1. 5.1 Voluntary Participation
  2. 5.2 Confidentiality
  3. 5.3 Conflict of Interest
  4. 5.4 Liability Coverage
  5. 5.5 Human Subjects Clearance and Research Projects
  6. 5.6 Laws on Sexual Coercion and Compliance with Mandatory State Reporting

All family planning program services must be provided in a manner that protects the dignity and privacy of the individual, and without regard to religion, race, color, national origin, residency, creed, handicap, sex, number of pregnancies, marital status, age, sexual orientation, or contraceptive preference.

Delegate agencies are required to have written protocols and operating procedures that meet the standards of the legal issues described in 5.1 through 5.6.

5.1 Voluntary Participation

Any individual using family planning program services must do so solely on a voluntary basis. Individuals must not be subjected to coercion to receive services or to use, or not use, any particular method of family planning.

Acceptance of family planning services must not be a prerequisite to eligibility for, or receipt of, any other service or assistance from, or participation in, any other program of the IDHS.

Project personnel must be informed that they may be subject to prosecution under Federal law if they coerce or endeavor to coerce any person to undergo an abortion or sterilization procedure.

5.2 Confidentiality

All personnel working in the IDHS family planning program must assure and respect client confidentiality and provide safeguards to protect against any invasion of personal privacy as required by the Privacy Act/Health Insurance Portability and Accountability Act (HIPAA). No information obtained by the delegate agency staff about clients receiving services may be disclosed without the client's written consent, except as required by law or as necessary to provide services to the individual, with appropriate safeguards for confidentiality. Otherwise, information may only be disclosed in summary, statistical, or other form that does not identify the individual.

At all times, personnel must preserve the confidentiality of all clients in every aspect of their family planning care, including within the clinic setting and with billing transactions. Every effort should be made to have all written and verbal exchanges between clients and office/clerical staff kept private, so that other clients in the waiting room or other uninvolved staff do not know who is visiting the clinic or the reason for the visit.

Personnel must inform clients fully about the limits of confidentiality in a given situation, when confidentiality may be broken, the purposes for which information is obtained, and how information maybe used within the confines of the program. Clients must be advised that they have the right to specify how the family planning program staff may contact them. Clinics may establish a code system with the client to be used for contact purposes (e.g., "tell her 'Judy' would like for her to call back."). Clients have the right to designate themselves as a "no contact" client, however they must be advised about the possibility of abnormal test results and the need for further confidential contact to ensure the health of the client.

Minors must be assured that all aspects of their care are confidential and that if follow-up is necessary, every effort will be made to assure their privacy and confidentiality. (See also Section 5.6 regarding Mandatory State Reporting).

Confidentiality of information must be assured by the inclusion of confidentiality statements on consent forms and through postings in the clinics. Delegates must have confidentiality policies that are included in policy manuals and which are verbalized to clients. All staff, volunteers, students, auditors and program consultants must be required to sign confidentiality statements prior to working with the delegate agency. (Refer to Appendix B for a Confidentiality Statement).

Personnel must obtain written consent from the client prior to the photocopying of and/or the releasing of medical records. Staff should make efforts to assure confidentiality of the client's family planning record while it is being photocopied. In addition, staff should be aware of confidentiality issues and policies of other agencies and providers when releasing documents and/or discussing client information, e.g., school nurse/school health clinics.

Other issues of importance:

  • The client's written consent must also be obtained prior to photographing, taping or recording any family planning activities.
  • The client's verbal consent is required before permitting third party observation of a clinic visit.
  • The client must be informed that she/he has the right to have his or her partner participate or not participate in the process of providing services to the client. If the partner participates, the client must also have some time alone with the clinician.

See also Section 10.3 Medical Records for information on confidentiality of client records.

5.3 Conflict of Interest

Delegate agencies must ensure that all employees, consultants, or members of advisory/governing bodies associated with the IDHS Family Planning Program will not use their positions for the purposes of private gain for themselves or for others.

5.4 Liability Coverage

Delegate agencies must ensure the existence of adequate liability coverage for all segments of the project funded under the grant (medical malpractice, general liability, disaster coverage and fidelity bonding). If contractual staff are not covered under the delegate policies, the agency must maintain evidence of current insurance in personnel files. Liability insurance coverage should be considered for members of the Governing Board and/or Advisory Boards. Agencies claiming Tort Immunity must provide evidence with each annual grant application.

5.5 Human Subjects Clearance and Research Projects

The IDHS Family Planning Program adheres to the legal requirements governing human subjects research of 45 CFR Part 46, as applicable.

All delegate agencies considering clinical or sociological research must adhere to legal requirements governing human subjects research, specifically with regard to informed consent.

Delegates must meet the following criteria for research activities:

  • All delegate agency requests for research approval must be submitted in writing to the IDHS. No research may be conducted until a federally certified Institutional Review Board (IRB) has reviewed and approved the project. Delegate agencies are required to submit to DHS Family Planning Program Administrator a copy of the study protocol, materials submitted to the IRB, and the IRB letter of approval. When all proposal components are in place, IDHS will forward requests to the Region V DHHS office and the Office of Population Affairs for final approval. Delegates must be notified by IDHS in writing of approved research projects prior to initiation of any research activities.
  • Informed consent to participate in the research must be obtained from each client prior to their enrollment or participation in research efforts.

Refer to Appendix C for the IDHS Application Form and Checklist for Human Subjects Research Proposals.

5.6 Laws on Sexual Coercion and Compliance with Mandatory State Reporting

The fiscal year 1998 appropriation's bill for the Departments of Labor/HHS and Education (Public Law 105-78) contains language governing the use of Title X funds with respect to counseling minors about sexually coercive relationships. Specifically, the language states:

"None of the funds appropriated in the Act may be made available to any entity under

Title X of the Public Health Service Act unless the applicant for the award certifies to the Secretary that it encourages family participation in the decision of minors to seek family planning services and that it provides counseling to minors on how to resist attempts to coerce minors into engaging in sexual activities."

Additionally, the Fiscal Year 1999 Omnibus Appropriations bill (Public Law 105-277) contains language specific to Title X providers on compliance with State mandatory reporting laws. Specifically section 219 states:

"Notwithstanding any other provision of law, no provider of services under Title X of the Public Health Service Act shall be exempt from any State law requiring notification, or reporting of child abuse, child molestation, sexual abuse, rape, or incest."

Delegate agencies must comply with this appropriations language and with the Office of Population Affairs issued Program Instruction Series, OPA 98-1 and OPA 99-1, and must provide written assurance of compliance to the Illinois Department of Human Services Family Planning Program annually. In addition, delegate agencies are required to provide annual staff training for counseling on sexual coercion and the mandatory reporting of abuse. A resource prepared for Illinois Title X delegate agencies, called Minor Consent, Confidentiality, and Child Abuse Reporting in Title X Funded Family Planning Settings is included as Appendix D of this manual and is available online at the National Center For Youth Law website at Refer also to Section 8.8 in this manual for Guidelines for Counseling on Sexual Coercion.

Guidelines for the Mandatory Reporting of Abuse:

The IDHS Family Planning Program recognizes the legal responsibilities that a family planning professional has with respect to reporting suspected cases of child abuse and neglect as mandated by Federal law and the State of Illinois.

In Illinois, abuse and neglect are legally defined in the Abused and Neglected Child Reporting Act (ANCRA). ANCRA was interpreted by the Illinois Department of Children and Family Services Children's Justice Task Force into the Manual for Mandatory Reporters, revised in September 2005.

According to ANCRA, and as described in the Manual for Mandatory Reporters, all family planning program staff members are considered mandatory reporters. Mandated reporters are professionals who may work with children in the course of their professional duties. There are six groups of mandated reporters as defined in the ANCRA, sec.4, including Medical Personnel, such as physicians, LPNs, RNs, medical social workers, emergency medical technicians, nurse practitioners, and hospital administrators.

Mandated reporters are required to report suspected child maltreatment immediately when they have "reasonable cause to believe" that a child known to them in their professional or official capacity may be an abused or neglected child" (ANCRA sec.4). Reporting is done by calling the DCFS Hotline at 1-800-252-2873 or 1-800-25ABUSE. The hotline worker will determine if the information given by the reporter meets the legal requirements to initiate an investigation.

Criteria needed for a child abuse or neglect investigation include:

  • The alleged victim is a child under the age of 18.
  • The alleged perpetrator is a parent, guardian, foster parent, relative caregiver, paramour, any individual residing in the same home or any person responsible for the child's welfare at the time of the alleged abuse or neglect.
  • There is a specific incident of abuse or neglect or a specific set of circumstances involving suspected abuse or neglect.
  • There is demonstrated harm to the child or a substantial risk of physical or sexual injury to the child.

Information the reporter should have ready to give to the DCFS Hotline:

  • Names, birth dates (or approximate ages), races, genders, etc. for all adult and child subjects.
  • Addresses for all victims and perpetrators, including current location.
  • Information about the siblings or other family members, if available.
  • Specific information about the abusive incident or the circumstances contributing to risk of harm-for example, when the incident occurred, the extent of the injuries, how the child says it happened, and any other pertinent information.

If this information is not readily available, the reporter should not delay a call to the DCFS Hotline.

As professionals who work with children, mandated reporters are assumed to be in the best position to recognize and report child abuse and neglect as soon as possible. Mandated reporters are the state's "early warning system" to identify probable abuse early enough to avoid serious and long-term damage to a child. The State's primary goal is to protect the child and, whenever possible, to stabilize and preserve the family so that it may remain intact.

The Abused and Neglected Child Reporting Act places several requirements on mandatory reporters, including:

  • Mandatory reporters are required to report suspected child abuse or neglect immediately.
  • Privileged communication between professional and client, including communication in the Title X setting, is not grounds for failure to report. Willful failure to report suspected incidents of child abuse or neglect is a misdemeanor. Further, professionals may be subject to penalties by their regulatory boards.
  • Mandatory reporters may have to testify regarding any incident reported if the case becomes the subject of legal or judicial action.
  • State law protects the identity of all mandated reporters and they are given immunity from legal liability as a result of reports made in good faith.
  • Reports must be confirmed in writing to the local investigation unit within 48 hours of the DCFS Hotline call.

Upon hire, and then annually, all Title X staff must be oriented to the State of Illinois Mandated Reporting Act.

All abuse and mandatory reporting definitions, requirements, reporting hotlines and forms are included in the Illinois Department of Children and Family Services Manual for Mandatory Reporters and the IDHS requires that a copy of the manual must be kept on site at every family planning clinic. Specific required reporting forms are included in Appendix E of this manual.