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Ethical Considerations for Substance Abuse Counselors Back to Course Index

 

 
 
 Counselors specializing in substance abuse are often faced with unique situations that result in ethical challenges that other counselors may not typically address, such as the nature and culture of addiction and the level of privacy protection for voluntary substance use treatment.

 

It is important for a counselor to have the right education, an excellent understanding of patient’s rights, an understanding of how a client’s cultural background affects their treatment, confidentiality requirements, and mandatory abuse reporting issues.

There are necessary credentials and various levels for certification through the Florida Certification Board (FCB).

Certified Addiction Counselor (CAC)

  • You must accumulate 6,000 hours of supervised experience in A&D treatment.
  • If you have an Associate’s degree in Behavioral Sciences or higher, you will only need 4,000 hours of supervised experience.
  • You will need 250 hours of training in core areas of A&D treatment:
    • Clinical Evaluation (twenty-five hrs); Treatment Planning (fifteen hrs);
    • Referral to other A&D specialists (five hrs);
    • Service Coordination (five hrs); A&D Counseling of Clients (thirty hrs);
    • Client, Family, and Community Education (ten hrs);
    • Case Documentation (ten hrs); Professional and Ethical Responsibilities (thirty hrs);
    • Understanding Addiction/Treatment Knowledge (fifty-seven hrs);
    • Application to Practice/Professional Readiness (fifty-seven hrs);
    • HIV/AIDS (four hrs); Domestic Violence (two hrs).
  • If you have an HS diploma or GED, you will need 300 hours of direct supervision.
  • If you have an Associate’s degree or higher, this is reduced to 150 hours of direct supervision.
  • You will need 3 professional letters of reference.
  • Must sign the Florida Certification Board Code of Ethics.
  • Pass a Florida-specific A&D examination.

 

Certified Addiction Professional (CAP)

  • You need a Bachelor’s degree in a Behavioral Science from a Council of Higher Education Accredited University or College.
  • You will need 6,000 hours of supervised A&D experience.
  • If you have a Master’s or Ph.D. in counseling, you will only need 4,000 hours.
  • You will need 350 hours of training in core areas of A&D treatment: Clinical Evaluation (thirty-five hrs); Treatment Planning (twenty hrs); Referral to other A&D specialists (five hrs); Service Coordination (five hrs); A&D Counseling of Clients (fifty hrs); Client, Family, and Community Education (fifteen hrs); Case Documentation (fifteen hrs); Professional and Ethical Responsibilities (thirty hrs); Supervision (fifteen hrs); Understanding Addiction/Treatment Knowledge (seventy-seven hrs); Application to Practice/Professional Readiness (seventy-seven hrs); HIV/AIDS (four hrs); Domestic Violence (two hrs).
  • If you have your Bachelor’s degree, you will need 300 hours of direct supervision.
  • If you have your Master’s or Ph.D. in Counseling, you will only need 200 hours of direct supervision.
  • You will need 3 professional letters of reference.
  • Must sign the FCB Code of Ethics.
  • Pass a Florida-specific A&D examination.
  • Pass the IC&RC/AODA Exam

 

Master’s Level Certified Addiction Professional (MCAP) 

  • You need a masters’ degree or higher in Counseling, Rehabilitation/Counseling; Recreations Therapy/Counseling;
    Divinity/Religion/Theology/Pastoral (only with a concentration in counseling); Psychology to include Art/Dance Therapy; Drama/Expressive Arts Therapy; Music Therapy; Social Work from a Council of Higher Education Accredited University or College.
  • You will need 4,000 hours (approximately 2 years of full-time work) of addiction-specific, professional-level work
    experience. One year of full-time employment at 40-hours per week equals 2,080 hours of supervised A&D experience.
  • You will need 200 hours of on-the-job supervision of the applicant’s performance of addiction-related services at the level
    expected of an MCAP. in core areas of A&D treatment:
    • Clinical Evaluation (thirty-five hrs);
    • Treatment Planning (twenty hrs);
    • Referral to other A&D specialists (five hrs);
    • Service Coordination (five hrs);
    • A&D Counseling of Clients (fifty hrs);
    • Client, Family, and Community Education (fifteen hrs);
    • Case Documentation (fifteen hrs);
    • Professional and Ethical Responsibilities (thirty hrs);
    • Supervision (fifteen hrs);
    • Understanding Addiction/Treatment Knowledge (seventy-seven hrs);
    • Application to Practice/Professional Readiness (seventy-seven hrs);
    • HIV/AIDS (four hrs);
    • Domestic Violence (two hrs).
  • You will need 3 professional letters of reference.
  • Must sign the FCB Code of Ethics.
  • Pass a Florida-specific A&D examination.
  • Pass the IC&RC/AODA Exam for those seeking international reciprocity.

 

Professional Conduct and Ethics

 

As a result of increased litigation and ethics complaints against mental health practitioners — a significant portion of which alleges some kind of ethics violation — many professional education programs, social service agencies, licensing boards, and professional associations are sponsoring special training and education on ethics-related risk management, especially related to such issues as confidential and privileged information, informed consent, conflicts of interest, dual relationships and boundary issues, termination of services, and documentation.  This training and education typically focus on common ethical mistakes, procedures for handling complex ethical issues and dilemmas, forms of ethical misconduct, and prevailing ethical standards.

 

The professionals’ mantra is do no harm.  Sometimes with legal stipulations requiring one thing and a code of ethics stating the opposite, as a practitioner in the mental health field, you can be left  asking which action is less harmful rather than do no harm. 

 

The working definition of ethics includes the study of standards of conduct and moral judgment; this is the system or code of morals of a particular person, religion, group, or profession.  To be ethical means, as a professional, you are conforming to the standards of conduct agreed upon by a given profession or association.  Morals refer to the principles of rightness or wrongness that individuals or groups adhere to.  We can differentiate between morals and ethics.  To be moral implies conformity with the generally accepted standards of goodness or rightfulness of conduct or character.  To be ethical implies conformity with an elaborated, ideal code of moral principles, sometimes with the code of a particular profession.  It takes honesty and courage to use introspection and recognize how our morals and values affect how we behave in a professional situation.  A mental health technician who was molested at the age of 6 will undoubtedly be affected by this experience, particularly when a convicted child molester is the client.  As objective as we want to be, we all see through our own filters.  What is most important is rather than insisting we see every client as a blank slate, admit and continually check ourselves for the filters that are part of who we are.  To be aware of them and act accordingly is far more ethical than to deny they exist.

 

The Florida Certification Board is dedicated to the principle that certified professionals must conform their behavior to the highest standards of ethical practice.  To that end, the FCB has adopted the Certified Professional Code of Ethics (the Code) to be applied to all professionals, certified or seeking certification.

 

The FCB may refuse to issue a credential to any applicant, may issue a reprimand, or suspend or revoke the credential of any certified individual who has been convicted of a felony, is found to have been in violation of the Code, or falsifies any information on the application or in the Application Portfolio. 

 

All applications for certification require applicants to indicate whether or not the applicant has ever been convicted of a felony.  If the applicant indicates “yes” in this section of the application, he/she must provide the FCB with any and all information concerning any arrest(s), convictions, indictments, suspensions, or revocations.

 

The FCB is committed to investigate and sanction those certified professionals or those seeking certification who breach the Code.  Certified professionals or those seeking certification are therefore encouraged to thoroughly familiarize him/herself with the Code and to guide their behavior according to the rules set forth within the Code.

 

A  link to The Florida Certification Board’s Code of Ethics can be found at the bottom of this course.  Please familiarize yourself with the code.

 

Ethical Decision Making

Ethics is a term that can imply lofty, philosophical discussions, far removed from the everyday world. In reality, workers in the substance abuse treatment field are constantly faced with ethical dilemmas on an individual as well as a societal level. 

Working in the substance abuse treatment field presents dilemmas relating to personal beliefs, judgments, and values. The history of how society views persons with addictions is fraught with emotion, misconceptions, and biases that have affected the care of drug abusers. For example, it is not unusual in a health care setting for a patient to be perceived negatively just by being labeled a drug abuser. Because of the highly charged emotional nature of the substance abuse treatment field, providers should possess the tools to explore ethical dilemmas objectively. By doing so and by examining their own reactions to the situation, providers can proceed with the most ethical course of action.

Ethical issues are both personal (micro) and societal (macro) in nature. There is an ongoing struggle between legislating morality for the “public good” and fighting to retain an individual’s right to autonomy. It is the intense emotional nature of such concerns that takes an issue from a personal level to a societal level.

Syringe exchange programs (SEPs) are a good example of such ethical dilemmas. While the Secretary of the U.S. Department of Health and Human Services announced in 1998 that a review of scientific reports indicated that SEPs can be an effective component of a comprehensive strategy to prevent HIV, the restriction on Federal funding for SEPs has not been lifted. At issue is whether giving out clean syringes may sanction or encourage illegal drug use.

Alcohol and drug counselors may find that their time is spent not only sorting out client-level ethical dilemmas but also dealing with societal-level dilemmas. This could involve advocating for legislation that protects the rights of clients or adapting to the impacts of a policy that will further restrict a provider’s ability to intervene effectively with a client group.

Perhaps the most difficult dilemma occurs when there are conflicts between the clinicians’ values and the client’s behaviors. Professionals know that if a client threatens suicide or homicide, there is a duty to report. But most of the daily concerns that arise are not so simple. Ethical issues come up in numerous, seemingly insignificant ways. Did the client understand what the release of information stated, or did she rush so that the provider could make the next appointment? Did the clinician listen to what the client said about her culture and how the treatment plan would not work because it was not created in a culturally competent manner? Was information about the client shared with another helping agency, even though she did not give a release to that particular agency? These are the kinds of issues that arise every day, affecting client care and reflecting on one’s status as a clinician, as well as on the agency’s reputation.

All programs should have a consistent process for dealing with ethical concerns. Although ethical issues are usually complex enough to require a case-by-case evaluation, agency practices should provide for a routine process for approaching an ethical issue. For example, an agency might have, as a policy and procedure, a practice where the employee consults with a supervisor or an ethics consultation team within the agency within a specified time frame, and guidelines are provided for how to document such discussions. There could also be agency protocols for situations that have arisen in the past, such as a client’s admission that she is suicidal or homicidal, clients who come to the facility intoxicated and insist on driving home, or clients who admit to illegal activity. Given the ambiguous nature of ethical dilemmas, it is helpful to clarify the process for resolving dilemmas, even if the resolution may differ from case to case.

By practicing the following steps, suggested by the NASW, the clinician can move to a more rational level of decision making.

  • Identify the clinical issues. When an ethical issue arises, the provider should review the larger picture in her work with the client or system. Identifying the clinical issues is the first step. What are the clinical needs of the client? How does the ethical dilemma relate to what the client presented with initially? It is important to assess the clinical issues so that pertinent information is not missed. For example, if a client with advanced AIDS is asking for help in ending his life, the provider would review the client’s previous mental health history and current emotional issues, look for any significant changes in the client’s support system, and determine if the client is experiencing social or psychological issues that might influence his decision. Until this is done, it is impossible for the clinician to address the ethical issue regarding end of life.

 

  • Identify the legal issues. There can be significant legal issues to consider. Has the clinician reviewed the State and local laws regarding the issue? If necessary, has the clinician checked with an attorney for consultation or informed his supervisor of possible liability questions?

 

  • Identify the system issues. What are the policies and procedures of the clinician’s agency regarding the ethical question? In some agencies, the answers may be hard to find, but they can shed light on any restrictions the clinician may face or make the choices clear. For example, if it is against policy to accept a gift from a client, the clinician can avoid a personal rejection by referring to the policy. Agency policy also can help a clinician in a legal challenge. For example, if the clinician followed agency policy, it is less likely that the clinician can be challenged legally for actions pertaining to that policy (although the agency can still be challenged).

 

  • Identify the cultural issues. Cultural issues often are glossed over in the midst of a dilemma or crisis. Yet cultural issues are significant for understanding the client’s motivation and whether or not the client will act according to the proposed treatment plan. 

 

  • Identify the ethical issues. What is the clinician’s reaction to the situation? Ethical issues often are revealed when there is a “gut instinct” that something is not right. Confusion, anxiety, or uncertainty about what to do next with the client are indicators that an ethical issue is at stake. If basic principles seem to be compromised, the clinician should stop and evaluate further. A significant step is for the clinician to examine her own feelings about the situation. The clinician needs to identify any counter-transference issues regarding the situation to ensure that the issue can be viewed objectively.

 

  • Review what principles are at stake. What is the true dilemma? Is there a dilemma at all? So much can be occurring with a client that it is difficult to see the real issue or whether the issue is significant. Is harm being done either by the client or to the client? Can the client make her own decisions, and is she not being allowed to do so? Is the client being treated fairly regardless of race, culture, or lifestyle? Is there a threat to the client’s confidentiality? These are the questions relating to basic ethical principles.

 

  • What are the possible options? By this point, the clinician’s next step may be clear already. Or, there may be choices of possible options. It is useful to simply list all of the possible options and then examine them.

 

  • Review the pros and cons of each option. List the pros and cons of each possible option, noting the impact of the options on the welfare of the client, the clinician, the agency, and others involved in the situation, such as the client’s support system.

 

  • Act. At this point, the clinician should be ready to make a decision. Sometimes the decision may not be one that everyone is comfortable with, but it may be the least objectionable plan. The client should understand the rationale for the clinician’s decision, and there should be evidence of the clinician’s thought process in the documentation of consultations, discussions with the client, and supervisory meetings.

 

  • Follow up and evaluate. An ethical decision should be evaluated, and the impact on the client monitored. For example, if the clinician decided to breach confidentiality for the protection of the client, how has this affected the clinical work with the client? These issues should be considered once an initial crisis has passed.

It is also very important during an ethical dilemma to seek supervision.

 

Dual Relationships

Dual Relationships pose another dilemma that clinicians may find themselves in. Dual relationships, where a provider may have had contact with a client in a social context as well as in a professional role, bring up the ethical issue of boundaries. The line between social and professional roles can become blurred, especially in rural areas or in certain cultural communities. In the treatment provider network, a clinician may be seeing someone with whom she used to socialize or shoot up, or a gay male counselor may be case managing a peer from his community.

Dual relationships should be avoided if possible. A clinician who knows a client via a past social or sexual encounter should not assume a professional role with that client. Some clients may avoid accessing services because they are afraid of seeing someone they know, and the ethical issues regarding disclosure and trust are many. If there is no other provider available to the client, it is imperative that the clinician clarify what the professional role means and how the information shared will remain confidential. It may also be necessary throughout the treatment process to frequently check the client’s comfort level and to continually emphasize the role and boundaries of the clinician.

 

Client Rights  

Client rights vary widely in substance across different levels of care and treatment settings.  The foundation for client rights is in federal statutes and regulations (Medicare, Medicaid, etc.), state statutes, licensing requirements for the treatment providers, legal requirements and court mandates, as well as the differing professional codes of ethics. 

 

It is good and standard practice to supply the client with a written copy of their rights upon orientation to a program.  It is recommended that the patient sign a copy of these rights and/or a statement that they received the rights.  This document should be added to the client’s chart.

 

 

 

Example of a typical outpatient handout may include some or all of the following items depending on the program:

      As a client of ________________ you have the right to:

1.  Participate in the development of your treatment plan and goals.

2.  Receive clinically appropriate care in the least restrictive setting.

3.  To be informed about treatment and be able to make an informed choice about treatment alternatives, including terminating treatment.

4.  Have access to your treatment records and have the right to ask questions concerning your treatment options.

5.  Request a second opinion about treatment issues from a clinician of your choosing.

6.  Confidentiality of your treatment records, which may only be released with your written authorization or under narrowly defined circumstances.

7.  Be treated equally with respect and dignity.

8.  Report grievances concerning staff or the program following the appropriate chain until the concern is satisfactorily addressed without fear of retaliation or loss of services.

 

__________________   ______________

Signature of Client         Date

 

 

Again, rights within the public mental health system are founded in the state statutes.  To list the statutes of every state is beyond the scope of this course.  It is recommended that each program research the requirements in their state. 

 

 

Confidentiality

 

The primary purpose of confidentiality is to protect the client’s right to privacy by ensuring that matters discussed with a professional are not disclosed to others without the expressed consent of the client.  Clients need to be well informed on what is held confidential and what is required by law to be reported.  This will help to build trust, and through this trust, the client will be more willing to be open and honest and participate in treatment more fully. 

 

There are limits to Confidentiality.  For example, a counselor can request a group keep each other’s information private, but it needs to be understood that lack of privacy is an inherent risk with group counseling.  There are other limits of confidentiality, including concerns of safety. 

 

Typical Limits to Confidentiality:

 

This list is not inclusive but rather a guide to typical situations where confidentiality often gets limited.  Always, always, always inform the client in writing with their signature of any limitations of confidentiality before beginning treatment. 

 

Before releasing ANY client information without written authorization from the client, consult a supervisor or attorney and document this consultation.

  •         Subpoena
  •         Child abuse or Neglect
  •         A client has deemed a danger to themselves or others
  •         During a medical emergency, information relevant to the emergency.
  •         Under defined circumstances, providers are required to reveal
  •         information on minors to parents, guardians, or surrogate decision-makers.
  •         Third-party payers and state oversight agencies.

 A consent to release information should follow these guidelines:

 It should be in writing and include:

  •         The name or general designation of the program(s) making the disclosure.
  •         The name of the individual or organization who will receive the  disclosure.
  •         How much and what type of information is to be disclosed.
  •         A statement that the client may revoke the consent at any time, except to the extent that the program has already acted on the basis of the  consent (already released information).
  •         The date, event, or condition upon which the consent expires, if not previously revoked.
  •      The date upon which the consent is signed.

Just about anyone who has received medical care has heard of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the law that regulates the use and disclosure of Protected Health Information (PHI) held by “covered entities” such as health plans. But far fewer are familiar with the special privacy protections afforded to alcohol and drug abuse patient records by 42 Code of Federal Regulations (“CFR”) Part 2.

The privacy provisions in 42 CFR Part 2 were motivated by the understanding that stigma and fear of prosecution might dissuade persons with substance use disorders from seeking treatment. To add an extra layer of protection to these records, the regulations outline under what limited circumstances information about a patient’s treatment may be disclosed with and without the patient’s consent. Who and what is covered can be confusing, though.

In the early 1970s, Congress enacted legislation that gave patients a right to confidentiality. For almost four decades since the Federal confidentiality regulations (42 CFR Part 2 or Part 2) were issued, confidentiality has been a cornerstone practice for substance abuse treatment programs across the country.

42 CFR Part 2 applies to any individual or entity that is federally assisted and holds itself out as providing and provides, alcohol or drug abuse diagnosis, treatment, or referral for treatment (42 CFR § 2.11). Most drug and alcohol treatment programs are federally assisted. For-profit programs and private practitioners that do not receive federal assistance of any kind would not be subject to the requirements of 42 CFR Part 2 unless the State licensing or certification agency requires them to comply. However, any clinician who uses a controlled substance for detoxification or maintenance treatment of a substance use disorder requires a federal DEA registration and becomes subject to the regulations through the DEA license.

The Federal Drug and Alcohol Confidentiality Law (42 CFR Part 2) 42 CFR Part 2 applies to “federally-assisted” providers that meet the definition of a “program.” A “program” includes any individual or entity that provides, in whole or in part, alcohol or drug abuse diagnosis, treatment, and referral for treatment or prevention. (42 USC §§ 290dd-2, 42 CFR 2.11)1

Only “covered entities” that electronically transmit information to carry out these financial or administrative duties are covered by HIPAA. Therefore, drug and alcohol prevention programs are health care providers and, as such, are required to comply with HIPAA if they transmit covered transactions electronically. General education classes would not be covered by HIPAA as they would not meet the definition of “health care” under HIPAA.

What if both HIPAA and 42 CFR Part 2 apply? If a program is covered under both HIPAA and 42 CFR Part 2, the statute that is more protective of the patient’s identifying information must be followed.

Although the reach of HIPAA is more expansive, the vast majority of drug and alcohol programs will be covered by both 42 CRF Part 2 and HIPAA.

42 CFR Part 2 states that any information that would identify a patient as having an alcohol or drug problem, either directly or indirectly, is protected. Therefore, prevention efforts are covered under 42 CFR Part 2 if the information would disclose that an individual is an alcohol or drug user or is in an alcohol or drug program.

This means that a general drug and alcohol education class for the entire sixth grade would not be covered, but a class that targets a specific audience (e.g., kids who have been caught with drugs at school) would be covered. HIPAA protects all health information that identifies an individual whether or not it identifies them as a patient of a particular program or as receiving services for a specific purpose. ALL patient identifying information transmitted or maintained by the program in any medium (oral, written, or electronic) is protected under HIPAA once it is determined that the program is a covered entity that transmits health information electronically in connection with a covered transaction.

 

What Disclosures are Permissible?

The Federal Drug and Alcohol Confidentiality Law – 42 CFR Part 2 42 CFR, Part 2’s prohibition on disclosing patient-identifying information, has very few exceptions. The following are the general categories of exceptions:

  • written consent
  • internal program communications
  • removal of all patient-identifying information
  • medical emergency
  • court order
  • crime on program premises or against program personnel
  • research
  • audits and evaluations
  • child abuse
  • conjunction with a qualified service organization agreement.

 

Permissible Communications Consent/Authorization:

The best way to ensure communications are permissible under 42 CFR Part 2 is to have the individual sign a consent/authorization form that complies with the requirements of both HIPAA and 42 CFR Part 2.  

The elements of a consent/authorization form that must be included are listed below.  In addition, also include applicable state law as well.

  • Name or general designation of the program or person permitted to make the disclosure
  • Name or title of the individual or name of the organization to which disclosure is to be made
  • Name of the patient
  • Purpose of the disclosure
  • How much and what kind of information is to be disclosed
  • Signature of the patient (and, in some states, a parent or guardian)
  • Date on which consent is signed
  • Statement that the consent is subject to revocation at any time except to the extent that the program has already acted on it
  • Date, event, or condition upon which consent will expire if not previously revoked

Qualified Service Organizations/Business Associate Agreements: Pursuant to both 42 CFR Part 2 and HIPAA, programs can disclose information without consent to outside organizations that provide services to the program or its patients. These organizations are called Qualified Service Organizations (QSOs) and Business Associate Agreements (BAAs) under 42 CFR Part 2 and HIPAA, respectively. Only two parties may enter into these agreements, and two alcohol and drug programs may not enter into a QSO or BAA with one another. Student Assistance Programs (SAPs) can enter into QSO/BA agreements with the school’s administrative office or principal’s office.

Once these agreements have been entered into, the program and the outside agency can communicate freely as long as the information is limited to what is necessary for the BAA or QSO to provide services to the program.

Both 42 CFR Part 2 and HIPAA allow communications to be made between individuals within a program and to an entity that has direct administrative control over the program on a need-to-know basis. Most student assistance programs (SAP) are under the direct administrative control of the principal’s office. Since information can only be disclosed under this section on a need-to-know basis, an SAP can share information necessary to obtain permission for students to attend the program, for example, but not to a principal who is considering disciplinary action. A program can be structured in a way that a school’s SAP counselors, guidance counselor, school nurse, teacher representative, and a representative of the principal’s office are all considered to be part of the program as key individuals concerned with the student’s overall social, health and educational functioning. The program must be defined and structured in a way that includes these individuals as part of the program. Students should be made aware that these individuals will receive information about them but that they are bound by HIPAA and 42 CFR Part 2.

 

 

Mandatory Abuse Reporting

 

The lengths to which a community goes to protect its most vulnerable members help define it as a civil society. Different states around the U.S. have varying laws that impose requirements on the reporting of abuse to the proper authorities, with the aim of putting an end to violence and emotional harm. Florida’s legislature has enacted mandatory reporting laws for the abuse of children, the elderly, and individuals with disabilities.

 

Who Must Report?

Unlike many states where only specified legal and health care professionals must report abuse and criminal mistreatment of elders and other vulnerable adults, in Florida, any person who knows or suspects abuse must report it. However, in the case of children, the list of mandatory reporters is limited. The list includes health care professionals–including doctors, nurses and dentists; educators–including teachers, school administrators, guidance counselors, and school mental health professionals; child welfare agency personnel; child care providers and their employees; law enforcement officers and staff; and people who process or produce printed or visual materials, such as photo processors. Of course, anyone else aware of child abuse may report it, although not legally obligated to do so.

Under Florida’s mandatory reporting laws, knowledge or reasonable suspicion of abuse, neglect, or abandonment are applied as the standards for reporting. The actions that must be reported include physical abuse, sexual abuse, neglect by parties responsible for care, words or behaviors that could cause psychological damage, and exploitation.

 

The laws prohibit false reporting of abuse for the purpose of harassing the accused abuser, financial gain of the reporter, obtaining legal custody of the child or a vulnerable adult, or any personal benefit. Moreover, legal privileges that normally apply between spouses or between physician and patient are eliminated for abuse reporting, although attorney-client and clergy-penitent privileges do apply.

 

Mandatory reporters must provide their names, addresses, and contact information in their reports. However, their identities will be kept confidential by the investigating agencies. Individuals who comply with the law and report abuse in good faith are protected from civil or criminal liability. On the other hand, those who do not fulfill their mandatory duty to report are committing a second-degree misdemeanor.  

 

 

General Barriers to Social Services 

 

Racial and ethnic populations may face a number of problems (language, transportation, etc.) that may impede their access to social services.  Individuals from racial/ethnic groups tend to under-utilize healthcare, prenatal care, mental healthcare, and substance abuse treatment, or they seek them as a last resort.  Treatment may be sought only when the resources of the traditional family support network have been exhausted.  At this point, problems may be so chronic and severe that treatment outcomes may be poor.

 

The individual’s economic status may be a deterrent to the purchase of services.  Racial/ethnic populations are not only more likely to have lower incomes than those of the mainstream population but to be less insured.   For example, the US Bureau of Census (1997) indicated Hispanics were the most likely group to have no health insurance.   In 1997, approximately 30% of the total US population received health insurance via Medicare or Medicaid.

 

Those needing social services may live in areas where access to providers is limited because of distance or transportation problems.  Also, those with access may often find services are inadequate or inconveniently scheduled.  Others may not realize they are eligible or may not be aware of what services a local program offers.   Many social services providers are not able to address the specific needs of individuals from cultural backgrounds different from their own, even when they speak the client’s language of origin.  This is further compounded when trying to develop written material for linguistic and culturally diverse populations.   Issues such as literacy levels and regional differences (different dialects) need to be taken into account when developing written program material.

 

Beliefs and attitudes regarding health and illness may act as obstacles keeping racial and ethnic populations from seeking treatment for social problems.   The literature on health and mental health has identified a number of factors that contribute to underutilization of services.  For example, reliance on folk remedies may cause some underutilization of medical services.  Cultural stigmas attached to psychiatric care, psychotherapy, counseling may invoke fear of losing status and of being judged a failure by the family and the community, and, thereby, contribute to underutilization.   Cultures differ in their characterization and acceptance of abnormal behaviors.  For example, what is considered abnormal behavior in one culture may be accepted or encouraged in another.   For example, the practice of voodoo may be accepted in one group and scorned in other groups. Abnormal behaviors may be attributed to physical or psychological causes, or they may be viewed as the direct result of supernatural or spiritual factors.

 

Emergency rooms often serve as the primary care providers for members of racial and ethnic minority groups in urban areas.  Individuals with long-standing social problems are more susceptible to serious medical problems and are more likely to use emergency rooms.  However, emergency rooms often are unable to provide appropriate referrals to social services or to provide follow-up to assure appropriate care is provided.

 

Regardless of the services required, racism on an institutional or individual level can be a significant barrier to effective treatment.  Institutional racism within a service organization is evident when the program design is oblivious to the racial, cultural, or ethnic backgrounds, values, and mores of its client population.  Latent prejudices on the part of the staff, as well as language and cultural differences, undermine efforts to help patients achieve recovery.

 

A community in social and economic turmoil may reject social service providers who are outsiders.  Negative experiences with providers who may have lacked respect, awareness, or concern for cultural differences often reinforce unfavorable attitudes and distrust.  For example, some treatment programs may be rendered ineffective if the community has not been involved in their planning and implementation.

 

 

Cultural Competence

 

The importance of culture increases in individuals living in a socio-cultural setting other than the one they came from.  Also, for those who have not experienced socio-cultural change, cultural issues may come to the forefront in interactions with individuals who do not share the same culture of origin.  Such encounters prompt the realization that different cultures view the world in different ways.  A way to help bridge those differences is through the acquisition of knowledge about other cultures.  Cultural knowledge enhances the understanding of different views and also helps to develop more effective problem-solving strategies. 

 

A cultural competency program is one that demonstrates sensitivity and understanding of cultural differences.  It is a fundamental ingredient that helps to develop trust, as well as an understanding of the way members of different cultural groups, define health, illness, and health care. Consequently, culture is a set of academic and interpersonal skills that allow individuals to increase their understanding and an appreciation of cultural differences and similarities within, among, and between cultural/ethnic groups.

A culturally competent social service provider recognizes and utilizes the client’s strengths, values and experiences while encouraging behavioral and attitudinal change.  Culturally responsive services generally focus on the following:

 

  •           Knowledge of the client’s native language
  •           Sensitivity to the cultural mores of the client population
  •           Staff background similar to clients
  •           Treatment/services modalities that include values of the client population
  •           Representation of the client population in decision-making and policy implementation.

 

It has been recommended that cultural competency programs need to implement cultural competence at all levels:  Policy, structure, attitude, staff, and policy.  Stated slightly differently, culturally competent systems include professional behavioral norms that are built into the organization’s mission, structure, personnel, and program design and treatment modalities.

 

Cultural competence also infers the willingness of professionals and the programs they operate to conduct self-appraisals to develop an understanding of how they may differ from the clients they serve.  Cultural competence also entails acknowledgment of existing inherent cultural biases on one’s attitude and behavior.  A provider’s discomfort in relating to individuals who are different can be communicated in many non-verbal ways.  Common factors that influence comfort include ethnic and racial characteristics, socioeconomic background, religion, and physical and mental handicaps.  However, cultural competence requires communication that goes beyond language proficiency to focus on meanings and interpretations.  Consequently, within a culturally competent framework, knowledge of cultural beliefs and expectations are necessary for effective communication.

 

A conceptualization of a continuum of cultural competence was developed by Georgetown University in 1989.  It can be used to assess the level of cultural competence.  It includes:   

 

          CULTURAL DESTRUCTIVENESS:  Attitudes, policies, and practice which are destructive to other cultures.

         

         CULTURAL INCAPACITY:  Lacks the capacity to help but is not intentionally destructive.

         

          CULTURAL BLINDNESS:  Attempts to treat all people as though they are alike.  It infers that one’s color or culture does not matter.

                        Services are so culturally neutral they are not relevant to anyone.

         

          CULTURAL PRE-COMPETENCE:  Individuals or agencies realize they have weaknesses in their cultural competence and attempts to improve.  The risk at this stage is that token change may be accepted as sufficient.

         

          CULTURAL COMPETENCE:  Others are accepted and respected for their differences and cultural knowledge is continually expanded.  In program settings, staff who are committed to their particular culture are hired; staff are encouraged to become comfortable working in cross-cultural situations.

         

        CULTURAL PROFICIENCY:  Different cultures are held in high esteem.  Agencies and staff advocate and work to improve relationships among cultures throughout society.

 

The melting pot continues to blend people from all cultures into one person.  I think the great American experiment has proven successful, as we have adapted the strengths of each culture into the mainstream culture.  Again, we have made a lot of progress, but there remains a lot of work to be done.

 

 

Language Considerations

 

One of the greatest barriers to the acculturation of racial/ethnic groups into the American way of life is language.  Most early immigrants that came to the U.S. did not speak, read, write or understand spoken English.  Fortunately, some of the more recent immigrants have a better command of the English language, but problems still exist, especially with low socioeconomic individuals who migrate to the US to avoid poverty and unemployment in their native country.   

 

The language barrier also extends into the workplace.  For example, over half of US companies provide limited training material in languages other than English.  It appears some progress is being made in this area in recent years, and more written materials are becoming available in Spanish but seldom in other languages.  There are also additional risks to the workforce due to the language barrier.

 

o       Non-English speaking (and reading) workers are at greater risk due to their inability to recognize hazardous operations.

o       Verbal commands or warnings often are misunderstood or not acted upon because of uncertainty.

 

Due to these factors and other considerations, OSHA requires that employers establish effective communication with non-English speaking workers.  Again, some progress is being made, but there is a long way to go.  One way an employer can bridge the gap is to recognize the need for language interpreting and translation services.  Employers may also hire and train bi-lingual staff and translate safety-sensitive documents into native languages.  The employer may also provide cultural diversity training for all staff.

 

42 CFR:

Although the test questions for the course completion are from the material above this notice, for a more in-depth look at 42 CFR, we have provided the regulations below.  Please either read the regulations and then click on Take Test or simply scroll down to the bottom and click on Take Test to bypass the regulations.

 

TITLE 42–Public Health

CHAPTER I–PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES

SUBCHAPTER A–GENERAL PROVISIONS

PART 2–CONFIDENTIALITY OF ALCOHOL AND DRUG ABUSE PATIENT RECORDS

 

TITLE 42–PUBLIC HEALTH CHAPTER I–PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES

PART 2–CONFIDENTIALITY OF ALCOHOL AND DRUG ABUSE PATIENT RECORDS–Table of Contents                         

 Subpart A–Introduction

Sec. 2.1 Statutory authority for confidentiality of drug abuse patient records. 

The restrictions of these regulations upon the disclosure and use of drug abuse patient records were initially authorized by section 408 of the Drug Abuse Prevention, Treatment, and Rehabilitation Act (21 U.S.C. 1175). That section as amended was transferred by Pub. L. 98-24 to section 527 of the Public Health Service Act which is codified at 42 U.S.C. 290ee-3.

The amended statutory authority is set forth below: Sec. 290ee-

3. Confidentiality of patient records.(a) Disclosure authorization Records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any drug abuse prevention function conducted, regulated, or directly or indirectly assisted by any department or agency of the United States shall, except as provided in subsection (e) of this section, be confidential and be disclosed only for the purposes and under the circumstances expressly authorized under subsection (b) of this section. (b) Purposes and circumstances of disclosure affecting consenting patient and patient regardless of consent(1) The content of any record referred to in subsection (a) of this section may be disclosed in accordance with the prior written consent of the patient with respect to whom such record is maintained, but only to such extent, under such circumstances, and for such purposes as may be allowed under regulations prescribed pursuant to subsection (g) of this section.(2) Whether or not the patient, with respect to whom any given record referred to in subsection (a) of this section is maintained, gives his written consent, the content of such record may be disclosed as follows: (A) To medical personnel to the extent necessary to meet a bona fide medical emergency. (B) To qualified personnel for the purpose of conducting scientific research, management audits, financial audits, or program evaluation, but such personnel may not identify, directly or indirectly, any individual patient in any report of such research, audit, or evaluation, or otherwise disclose patient identities in any manner. (C) If authorized by an appropriate order of a court of competent jurisdiction granted after application showing good cause therefor. In assessing good cause the court shall weigh the public interest and the need for disclosure against the injury to the patient, to the physician-patient relationship, and to the treatment services. Upon the granting of such order, the court, in determining the extent to which any disclosure of all or any part of any record is necessary, shall impose appropriate safeguards against unauthorized disclosure. (c) Prohibition against use of record in making criminal charges or investigation of patient except as authorized by a court order granted under subsection (b)(2)(C) of this section, no record referred to in subsection (a) of this section may be used to initiate or substantiate any criminal charges against a patient or to conduct any investigation of a patient. (d) Continuing prohibition against disclosure irrespective of status as patient the prohibitions of this section continue to apply to records concerning any individual who has been a patient, irrespective of whether or when he ceases to be a patient. (e) Armed Forces and Veterans’ Administration; interchange of records; report of suspected child abuse and neglect to State or local authorities. The prohibitions of this section do not apply to any interchange of records– (1) within the Armed Forces or within those components of the Veterans’ Administration furnishing health care to veterans, or (2) between such components and the Armed Forces. The prohibitions of this section do not apply to the reporting under State law of incidents of suspected child abuse and neglect to the appropriate State or local authorities. (f) Penalty for first and subsequent offenses any person who violates any provision of this section or any regulation issued pursuant to this section shall be fined not more than $500 in the case of a first offense, and not nore than $5,000 in the case of each subsequent offense. (g) Regulations; interagency consultations; definitions, safeguards, and procedures, including procedures and criteria for issuance and scope of orders.Except as provided in subsection (h) of this section, the Secretary, after consultation with the Administrator of Veterans’ Affairs and the heads of other Federal departments and agencies substantially affected thereby, shall prescribe regulations to carry out the purposes of this section. These regulations may contain such definitions, and may provide for such safeguards and procedures, including procedures and criteria for the issuance and scope of orders under subsection (b)(2)(C) of this section, as in the judgment of the Secretary are necessary or proper to effectuate the purposes of this section, to prevent circumvention or evasion thereof, or to facilitate compliance therewith. (Subsection (h) was superseded by section 111(c)(3) of Pub. L. 94-581. The responsibility of the Administrator of Veterans’ Affairs to write regulations to provide for confidentiality of drug abuse patient records under Title 38 was moved from 21 U.S.C. 1175 to 38 U.S.C. 4134.) 

TITLE 42–PUBLIC HEALTH CHAPTER I–PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES PART 2–CONFIDENTIALITY OF ALCOHOL AND DRUG ABUSE PATIENT RECORDS-

-Table of Contents Subpart A–Introduction Sec. 2.2 Statutory authority for confidentiality of alcohol abuse patient records. The restrictions of these regulations upon the disclosure and use of alcohol abuse patient records were initially authorized by section 333 of the comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment, and Rehabilitation Act of 1970 (42 U.S.C. 4582).

The section as amended was transferred by Pub. L. 98-24 to section 523 of the Public Health Service Act which is codified at 42 U.S.C. 290dd-3. The amended statutory authority is set forth below:Sec. 290dd-

3. Confidentiality of patient records(a) Disclosure authorization records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any program or activity relating to alcoholism or alcohol abuse education, training, treatment, rehabilitation, or research, which is conducted, regulated, or directly or indirectly assisted by any department or agency of the United States shall, except as provided in subsection (e) of this section, be confidential and be disclosed only for the purposes and under the circumstances expressly authorized under subsection (b) of this section.(b) Purposes and circumstances of disclosure affecting consenting patient and patient regardless of consent(1) The content of any record referred to in subsection (a) of this section may be disclosed in accordance with the prior written consent of the patient with respect to whom such record is maintained, but only to such extent, under such circumstances, and for such purposes as may be allowed under regulations prescribed pursuant to subsection (g) of this section.(2) Whether or not the patient, with respect to whom any given record referred to in subsection (a) of this section is maintained, gives his written consent, the content of such record may be disclosed as follows: (A) To medical personnel to the extent necessary to meet a bona fide medical emergency.(B) To qualified personnel for the purpose of conducting scientific research, management audits, financial audits, or program evaluation, but such personnel may not identify, directly or indirectly, any individual patient in any report of such research, audit, or evaluation, or otherwise disclose patient identities in any manner. (C) If authorized by an appropriate order of a court of competent jurisdiction granted after application showing good cause therefor. In assessing good cause the court shall weigh the public interest and the need for disclosure against the injury to the patient, to the physician-patient relationship, and to the treatment services. Upon the granting of such order, the court, in determining the extent to which any disclosure of all or any part of any record is necessary, shall impose appropriate safeguards against unauthorized disclosure.(c) Prohibition against use of record in making criminal charges or investigation of patient except as authorized by a court order granted under subsection (b)(2)(C) of this section, no record referred to in subsection (a) of this section may be used to initiate or substantiate any criminal charges against a patient or to conduct any investigation of a patient.(d) Continuing prohibition against disclosure irrespective of status as patient the prohibitions of this section continue to apply to records concerning any individual who has been a patient, irrespective of whether or when he ceases to be a patient.(e) Armed Forces and Veterans’ Administration; interchange of record of suspected child abuse and neglect to State or local authorities The prohibitions of this section do not apply to any interchange of records–(1) within the Armed Forces or within those components of the Veterans’ Administration furnishing health care to veterans, or(2) between such components and the Armed Forces. The prohibitions of this section do not apply to the reporting under State law of incidents of suspected child abuse and neglect to the appropriate State or local authorities.(f) Penalty for first and subsequent offenses any person who violates any provision of this section or any regulation issued pursuant to this section shall be fined not more than $500 in the case of a first offense, and not more than $5,000 in the case of each subsequent offense. (g) Regulations of Secretary; definitions, safeguards, and procedures, including procedures and criteria for issuance and scope of orders except as provided in subsection (h) of this section, the Secretary shall prescribe regulations to carry out the purposes of this section. These regulations may contain such definitions, and may provide for such safeguards and procedures, including procedures and criteria for the issuance and scope of orders under subsection(b)(2)(C) of this section, as in the judgment of the Secretary are necessary or proper to effectuate the purposes of this section, to prevent circumvention or evasion thereof, or to facilitate compliance therewith. (Subsection (h) was superseded by section 111(c)(4) of Pub. L. 94-581. The responsibility of the Administrator of Veterans’ Affairs to write regulations to provide for confidentiality of alcohol abuse patient records under Title 38 was moved from 42 U.S.C. 4582 to 38 U.S.C. 4134.) 

TITLE 42–PUBLIC HEALTH CHAPTER I–PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES PART 2–CONFIDENTIALITY OF ALCOHOL AND DRUG ABUSE PATIENT RECORDS-

-Table of ContentsSubpart A–IntroductionSec. 2.3 Purpose and effect.(a) Purpose. Under the statutory provisions quoted in Secs. 2.1 and 2.2, these regulations impose restrictions upon the disclosure and use of alcohol and drug abuse patient records which are maintained in connection with the performance of any federally assisted alcohol and drug abuse program. The regulations specify:(1) Definitions, applicability, and general restrictions in subpart B (definitions applicable to Sec. 2.34 only appear in that section);(2) Disclosures which may be made with written patient consent and the form of the written consent in subpart C;(3) Disclosures which may be made without written patient consent or an authorizing court order in subpart D; and(4) Disclosures and uses of patient records which may be made with an authorizing court order and the procedures and criteria for the entry and scope of those orders in subpart E.(b) Effect. (1) These regulations prohibit the disclosure and use of patient records unless certain circumstances exist. If any circumstances exists under which disclosure is permitted, that circumstance acts to remove the prohibition on disclosure but it does not compel discosure. Thus, the regulations do not require disclosure under any circumstances.(2) These regulations are not intended to direct the manner in which substantive functions such as research, treatment, and evaluation are carried out. They are intended to insure that an alcohol or drug abuse patient in a federally assisted alcohol or drug abuse program is not made more vulnerable by reason of the availability of his or her patient record than an individual who has an alcohol or drug problem and who does not seek treatment.(3) Because there is a criminal penalty (a fine–see 42 U.S.C. 290ee-3(f), 42 U.S.C. 290dd-3(f) and 42 CFR 2.4) for violating the regulations, they are to be construed strictly in favor of the potential violator in the same manner as a criminal statute (see M. Kraus & Brothers v. United States, 327 U.S. 614, 621-22, 66 S. Ct. 705, 707-08 (1946)). 

TITLE 42–PUBLIC HEALTH CHAPTER I–PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICESPART 2–CONFIDENTIALITY OF ALCOHOL AND DRUG ABUSE PATIENT RECORDS-

-Table of Contents Subpart A–IntroductionSec. 2.4 Criminal penalty for violation.Under 42 U.S.C. 290ee-3(f) and 42 U.S.C. 290dd-3(f), any person who violates any provision of those statutes or these regulations shallbe fined not more than $500 in the case of a first offense, and not more than $5,000 in the case of each subsequent offense. 

 [TITLE 42–PUBLIC HEALTH CHAPTER I–PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES PART 2–CONFIDENTIALITY OF ALCOHOL AND DRUG ABUSE PATIENT RECORDS–Table of Contents Subpart A–IntroductionSec. 2.5 Reports of violations.(a) The report of any violation of these regulations may be directed to the United States Attorney for the judicial district in which the violation occurs.(b) The report of any violation of these regulations by a methadone program may be directed to the Regional Offices of the Food and Drug Administration. 

TITLE 42–PUBLIC HEALTH CHAPTER I–PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICESPART 2–CONFIDENTIALITY OF ALCOHOL AND DRUG ABUSE PATIENT RECORDS-

-Table of Contents Subpart B–General ProvisionsSec. 2.11 Definitions.For purposes of these regulations:Alcohol abuse means the use of an alcoholic beverage which impairs the physical, mental, emotional, or social well-being of the user.Drug abuse means the use of a psychoactive substance for other than medicinal purposes which impairs the physical, mental, emotional, or social well-being of the user.Diagnosis means any reference to an individual’s alcohol or drug abuse or to a condition which is identified as having been caused by that abuse which is made for the purpose of treatment or referral for treatment.Disclose or disclosure means a communication of patient identifying information, the affirmative verification of another person’s communication of patient identifying information, or the communication of any information from the record of a patient who has been identified.Informant means an individual:(a) Who is a patient or employee of a program or who becomes a patient or employee of a program at the request of a law enforcement agency or official: and(b) Who at the request of a law enforcement agency or official observes one or more patients or employees of the program for the purpose of reporting the information obtained to the law enforcement agency or official.Patient means any individual who has applied for or been given diagnosis or treatment for alcohol or drug abuse at a federally assisted program and includes any individual who, after arrest on a criminal charge, is identified as an alcohol or drug abuser in order to determine that individual’s eligibility to participate in a program.Patient identifying information means the name, address, social security number, fingerprints, photograph, or similar information by which the identity of a patient can be determined with reasonable accuracy and speed either directly or by reference to other publicly available information. The term does not include a number assigned to a patient by a program, if that number does not consist of, or contain numbers (such as a social security, or driver’s license number) which could be used to identify a patient with reasonable accuracy and speed from sources external to the program.Person means an individual, partnership, corporation, Federal, State or local government agency, or any other legal entity.Program means:(a) An individual or entity (other than a general medical care facility) who holds itself out as providing, and provides, alcohol or drug abuse diagnosis, treatment or referral for treatment; or(b) An identified unit within a general medical facility which holds itself out as providing, and provides, alcohol or drug abuse diagnosis, treatment or referral for treatment; or(c) Medical personnel or other staff in a general medical care facility whose primary function is the provision of alcohol or drug abuse diagnosis, treatment or referral for treatment and who are identified as such providers. (See Sec. 2.12(e)(1) for examples.)Program director means:(a) In the case of a program which is an individual, that individual:(b) In the case of a program which is an organization, the individual designated as director, managing director, or otherwise vested with authority to act as chief executive of the organization.Qualified service organization means a person which:(a) Provides services to a program, such as data processing, bill collecting, dosage preparation, laboratory analyses, or legal, medical, accounting, or other professional services, or services to prevent or treat child abuse or neglect, including training on nutrition and child care and individual and group therapy, and(b) Has entered into a written agreement with a program under which that person:(1) Acknowledges that in receiving, storing, processing or otherwise dealing with any patient records from the progams, it is fully bound by these regulations; and(2) If necessary, will resist in judicial proceedings any efforts to obtain access to patient records except as permitted by these regulations.Records means any information, whether recorded or not, relating to a patient received or acquired by a federally assisted alcohol or drug program.Third party payer means a person who pays, or agrees to pay, for diagnosis or treatment furnished to a patient on the basis of a contractual relationship with the patient or a member of his family or on the basis of the patient’s eligibility for Federal, State, or local governmental benefits.Treatment means the management and care of a patient suffering from alcohol or drug abuse, a condition which is identified as having been caused by that abuse, or both, in order to reduce or eliminate the adverse effects upon the patient.Undercover agent means an officer of any Federal, State, or local law enforcement agency who enrolls in or becomes an employee of a program for the purpose of investigating a suspected violation of law or who pursues that purpose after enrolling or becoming employed for other purposes. 

TITLE 42–PUBLIC HEALTH CHAPTER I–PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICESPART 2–CONFIDENTIALITY OF ALCOHOL AND DRUG ABUSE PATIENT RECORDS-

-Table of Contents Subpart B–General Provisions Sec. 2.12 Applicability. (a) General–(1) Restrictions on disclosure. The restrictions on disclosure in these regulations apply to any information, whether or not recorded, which:(i) Would identify a patient as an alcohol or drug abuser either directly, by reference to other publicly available information, or through verification of such an identification by another person; and(ii) Is drug abuse information obtained by a federally assisted drug abuse program after March 20, 1972, or is alcohol abuse information obtained by a federally assisted alcohol abuse program after May 13, 1974 (or if obtained before the pertinent date, is maintained by a federally assisted alcohol or drug abuse program after that date as part of an ongoing treatment episode which extends past that date) for the purpose of treating alcohol or drug abuse, making a diagnosis for that treatment, or making a referral for that treatment.(2) Restriction on use. The restriction on use of information to initiate or substantiate any criminal charges against a patient or to conduct any criminal investigation of a patient (42 U.S.C. 290ee-3(c), 42 U.S.C. 290dd-3(c)) applies to any information, whether or not recorded which is drug abuse information obtained by a federally assisted drug abuse program after March 20, 1972, or is alcohol abuse information obtained by a federally assisted alcohol abuse program after May 13, 1974 (or if obtained before the pertinent date, is maintained by a federally assisted alcohol or drug abuse program after that date as part of an ongoing treatment episode which extends past that date), for the purpose of treating alcohol or drug abuse, making a diagnosis for the treatment, or making a referral for the treatment.(b) Federal assistance. An alcohol abuse or drug abuse program is considered to be federally assisted if:(1) It is conducted in whole or in part, whether directly or by contract or otherwise by any department or agency of the United States (but see paragraphs (c)(1) and (c)(2) of this section relating to the Veterans’ Administration and the Armed Forces);(2) It is being carried out under a license, certification, registration, or other authorization granted by any department or agency of the United States including but not limited to:(i) Certification of provider status under the Medicare program;(ii) Authorization to conduct methadone maintenance treatment (see 21 CFR 291.505); or(iii) Registration to dispense a substance under the Controlled Substances Act to the extent the controlled substance is used in the treatment of alcohol or drug abuse;(3) It is supported by funds provided by any department or agency of the United States by being:(i) A recipient of Federal financial assistance in any form, including financial assistance which does not directly pay for the alcohol or drug abuse diagnosis, treatment, or referral activities; or(ii) Conducted by a State or local government unit which, through general or special revenue sharing or other forms of assistance, receives Federal funds which could be (but are not necessarily) spent for the alcohol or drug abuse program; or(4) It is assisted by the Internal Revenue Service of the Department of the Treasury through the allowance of income tax deductions for contributions to the program or through the granting of tax exempt status to the program.(c) Exceptions–(1) Veterans’ Administration. These regulations do not apply to information on alcohol and drug abuse patients maintained in connection with the Veterans’ Administration provisions of hospital care, nursing home care, domiciliary care, and medical servicesunder title 38, United States Code. Those records are governed by 38 U.S.C. 4132 and regulations issued under that authority by the Administrator of Veterans’ Affairs.(2) Armed Forces. These regulations apply to any information described in paragraph (a) of this section which was obtained by any component of the Armed Forces during a period when the patient was subject to the Uniform Code of Military Justice except:(i) Any interchange of that information within the Armed Forces; and(ii) Any interchange of that information between the Armed Forces and those components of the Veterans Administration furnishing health care to veterans.(3) Communication within a program or between a program and an entity having direct administrative control over that program. The restrictions on disclosure in these regulations do not apply to communications of information between or among personnel having a need for the information in connection with their duties that arise out of the provision of diagnosis, treatment, or referral for treatment of alcohol or drug abuse if the communications are(i) Within a program or(ii) Between a program and an entity that has direct administrative control over the program.(4) Qualified Service Organizations. The restrictions on disclosure in these regulations do not apply to communications between a program and a qualified service organization of information needed by the organization to provide services to the program. (5) Crimes on program premises or against program personnel. The restrictions on disclosure and use in these regulations do not apply to communications from program personnel to law enforcement officers which-(i) Are directly related to a patient’s commission of a crime on the premises of the program or against program personnel or to a threat to commit such a crime; and(ii) Are limited to the circumstances of the incident, including the patient status of the individual committing or threatening to commit the crime, that individual’s name and address, and that individual’s last known whereabouts.(6) Reports of suspected child abuse and neglect. The restrictions on disclosure and use in these regulations do not apply to the reporting under State law of incidents of suspected child abuse and neglect to the appropriate State or local authorities. However, the restrictions continue to apply to the original alcohol or drug abuse patient records maintained by the program including their disclosure and use for civil or criminal proceedings which may arise out of the report of suspected child abuse and neglect.(d) Applicability to recipients of information–(1) Restriction on use of information. The restriction on the use of any information subject to these regulations to initiate or substantiate any criminal charges against a patient or to conduct any criminal investigation of a patient applies to any person who obtains that information from a federally assisted alcohol or drug abuse program, regardless of the status of the person obtaining the information or of whether the information was obtained in accordance with these regulations. This restriction on use bars, among other things, the introduction of that information as evidence in a criminal proceeding and any other use of the information to investigate or prosecute a patient with respect to a suspected crime. Information obtained by undercover agents or informants (see Sec. 2.17) or through patient access (see Sec. 2.23) is subject to the restriction on use.(2) Restrictions on disclosures–Third party payers, administrative entities, and others. The restrictions on disclosure in these regulations apply to:(i) Third party payers with regard to records disclosed to them by federally assisted alcohol or drug abuse programs;(ii) Entities having direct administrative control over programs with regard to information communicated to them by the program under Sec. 2.12(c)(3); and(iii) Persons who receive patient records directly from a federally assisted alcohol or drug abuse program and who are notified of the restrictions on redisclosure of the records in accordance with Sec. 2.32 of these regulations.(e) Explanation of applicability–(1) Coverage. These regulations cover any information (including information on referral and intake) about alcohol and drug abuse patients obtained by a program (as the terms “patient” and “program” are defined in Sec. 2.11) if the program is federally assisted in any manner described in Sec. 2.12(b). Coverage includes, but is not limited to, those treatment or rehabilitation programs, employee assistance programs, programs within general hospitals, school-based programs, and private practitioners who hold themselves out as providing, and provide alcohol or drug abuse diagnosis, treatment, or referral for treatment. However, these regulations would not apply, for example, to emergency room personnel who refer a patient to the intensive care unit for an apparent overdose, unless the primary function of such personnel is the provisionof alcohol or drug abuse diagnosis, treatment or referral and they are identified as providing such services or the emergency room has romoted itself to the community as a provider of such services.(2) Federal assistance to program required. If a patient’s alcohol or drug abuse diagnosis, treatment, or referral for treatment is not provided by a program which is federally conducted, regulated or supported in a manner which constitutes Federal assistance under Sec. 2.12(b), that patient’s record is not covered by these regulations. Thus, it is possible for an individual patient to benefit from Federalsupport and not be covered by the confidentiality regulations because the program in which the patient is enrolled is not federally assisted as defined in Sec. 2.12(b). For example, if a Federal court placed an individual in a private for-profit program and made a payment to the program on behalf of that individual, that patient’s record would not be covered by these regulations unless the program itself received Federal assistance as defined by Sec. 2.12(b).(3) Information to which restrictions are applicable. Whether a restriction is on use or disclosure affects the type of information which may be available. The restrictions on disclosure apply to any information which would identify a patient as an alcohol or drug abuser. The restriction on use of information to bring criminal charges against a patient for a crime applies to any information obtained by the program for the purpose of diagnosis, treatment, or referral for treatment of alcohol or drug abuse. (Note that restrictions on use and disclosure apply to recipients of information under Sec. 2.12(d).)(4) How type of diagnosis affects coverage. These regulations cover any record of a diagnosis identifying a patient as an alcohol or drug abuser which is prepared in connection with the treatment or referral for treatment of alcohol or drug abuse. A diagnosis prepared for the purpose of treatment or referral for treatment but which is not so used is covered by these regulations. The following are not covered by these regulations:(i) Diagnosis which is made solely for the purpose of providing evidence for use by law enforcement authorities; or(ii) A diagnosis of drug overdose or alcohol intoxication which clearly shows that the individual involved is not an alcohol or drug abuser (e.g., involuntary ingestion of alcohol or drugs or reaction to a prescribed dosage of one or more drugs).

 TITLE 42–PUBLIC HEALTHCHAPTER I–PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES PART 2–CONFIDENTIALITY OF ALCOHOL AND DRUG ABUSE PATIENT RECORDS

-Table of ContentsSubpart B–General Provisions Sec. 2.13 Confidentiality restrictions.(a) General. The patient records to which these regulations apply may be disclosed or used only as permitted by these regulations and may not otherwise be disclosed or used in any civil, criminal, administrative, or legislative proceedings conducted by any Federal, State,or local authority. Any disclosure made under these regulations must be limited to that information which is necessary to carry out the purpose of the disclosure.(b) Unconditional compliance required. The restrictions on disclosure and use in these regulations apply whether the holder of the information believes that the person seeking the information already has it, has other means of obtaining it, is a law enforcement or other official, has obtained a subpoena, or asserts any other justification for a disclosure or use which is not permitted by these regulations.(c) Acknowledging the presence of patients: Responding to requests. (1) The presence of an identified patient in a facility or component of a facility which is publicly identified as a place where only alcohol or drug abuse diagnosis, treatment, or referral is provided may be acknowledged only if the patient’s written consent is obtained in accordance with subpart C of these regulations or if an authorizing court order is entered in accordance with subpart E of these regulations. The regulations permit acknowledgement of the presence of an identified patient in a facility or part of a facility if the facility is not publicly identified as only an alcohol or drug abuse diagnosis, treatment or referral facility, and if the acknowledgement does not reveal that the patient is an alcohol or drug abuser.(2) Any answer to a request for a disclosure of patient records which is not permissible under these regulations must be made in a way that will not affirmatively reveal that an identified individual has been, or is being diagnosed or treated for alcohol or drug abuse. An inquiring party may be given a copy of these regulations and advised that they restrict the disclosure of alcohol or drug abuse patient record, but may not be told affirmatively that the regulations restrict the disclosure of the records of an identified patient. The regulations do not restrict a disclosure that an identified individual is not and never has been a patient. 

TITLE 42–PUBLIC HEALTH CHAPTER I–PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICESPART 2–CONFIDENTIALITY OF ALCOHOL AND DRUG ABUSE PATIENT RECORDS-

-Table of Contents Subpart B–General ProvisionsSec. 2.14 Minor patients.(a) Definition of minor. As used in these regulations the term “minor” means a person who has not attained the age of majority specified in the applicable State law, or if no age of majority is specified in the applicable State law, the age of eighteen years.(b) State law not requiring parental consent to treatment. If a minor patient acting alone has the legal capacity under the applicable State law to apply for and obtain alcohol or drug abuse treatment, any written consent for disclosure authorized under subpart C of these regulations may be given only by the minor patient. This restriction includes, but is not limited to, any disclosure of patient identifying information to the parent or guardian of a minor patient for the purpose of obtaining financial reimbursement. These regulations do not prohibit a program from refusing to provide treatment until the minor patient consents to the disclosure necessary to obtain reimbursement, but refusal to provide treatment may be prohibited under a State or local law requiring the program to furnish the service irrespective of ability to pay.(c) State law requiring parental consent to treatment. (1) Where State law requires consent of a parent, guardian, or other person for a minor to obtain alcohol or drug abuse treatment, any written consent for disclosure authorized under subpart C of these regulations must be given by both the minor and his or her parent, guardian, or other person authorized under State law to act in the minor’s behalf.(2) Where State law requires parental consent to treatment the fact of a minor’s application for treatment may be communicated to the minor’s parent, guardian, or other person authorized under State law to act in the minor’s behalf only if:(i) The minor has given written consent to the disclosure in accordance with subpart C of these regulations or(ii) The minor lacks the capacity to make a rational choice regarding such consent as judged by the program director under paragraph (d) of this section.(d) Minor applicant for services lacks capacity for rational choice. Facts relevant to reducing a threat to the life or physical well being of the applicant or any other individual may be disclosed to the parent, guardian, or other person authorized under State law to act in the minor’s behalf if the program director judges that:(1) A minor applicant for services lacks capacity because of extreme youth or mental or physical condition to make a rational decision on whether to consent to a disclosure under subpart C of these regulations to his or her parent, guardian, or other person authorized under State law to act in the minor’s behalf, and(2) The applicant’s situation poses a substantial threat to the life or physical well being of the applicant or any other individual which may be reduced by communicating relevant facts to the minor’s parent, guardian, or other person authorized under State law to act in the minor’s behalf.

TITLE 42–PUBLIC HEALTH CHAPTER I–PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICESPART 2–CONFIDENTIALITY OF ALCOHOL AND DRUG ABUSE PATIENT RECORDS-

-Table of ContentsSubpart B–General Provisions Sec. 2.15 Incompetent and deceased patients.(a) Incompetent patients other than minors–(1) Adjudication of incompetence. In the case of a patient who has been adjudicated as lacking the capacity, for any reason other than insufficient age, to manage his or her own affairs, any consent which is required under these regulations may be given by the guardian or other person authorized under State law to act in the patient’s behalf. (2) No adjudication of incompetency. For any period for which the program director determines that a patient, other than a minor or one who has been adjudicated incompetent, suffers from a medical condition that prevents knowing or effective action on his or her own behalf, the program director may exercise the right of the patient to consent to a disclosure under subpart C of these regulations for the sole purpose of obtaining payment for services from a third party payer.(b) Deceased patients–(1) Vital statistics. These regulations do not restrict the disclosure of patient identifying information relating to thecause of death of a patient under laws requiring the collection of death or other vital statistics or permitting inquiry into the cause of death.(2) Consent by personal representative. Any other disclosure of information identifying a deceased patient as an alcohol or drug abuser is subject to these regulations. If a written consent to the disclosure is required, that consent may be given by an executor, administrator, or other personal representative appointed under applicable State law. If there is no such appointment the consent may be given by the patient’s spouse or, if none, by any responsible member of the patient’s family. 

TITLE 42–PUBLIC HEALTH CHAPTER I–PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES PART 2–CONFIDENTIALITY OF ALCOHOL AND DRUG ABUSE PATIENT RECORDS–Table of Contents Subpart B–General Provisions Sec. 2.15 Incompetent and deceased patients.(a) Incompetent patients other than minors–(1) Adjudication of incompetence. In the case of a patient who has been adjudicated as lacking the capacity, for any reason other than insufficient age, to manage his or her own affairs, any consent which is required under these regulations may be given by the guardian or other person authorized under State law to act in the patient’s behalf.(2) No adjudication of incompetency. For any period for which the program director determines that a patient, other than a minor or one who has been adjudicated incompetent, suffers from a medical condition that prevents knowing or effective action on his or her own behalf, the program director may exercise the right of the patient to consent to a disclosure under subpart C of these regulations for the solepurpose of obtaining payment for services from a third party payer.(b) Deceased patients–(1) Vital statistics. These regulations do not restrict the disclosure of patient identifying information relating to the cause of death of a patient under laws requiring the collection of death or other vital statistics or permitting inquiry into the cause of death.(2) Consent by personal representative. Any other disclosure of information identifying a deceased patient as an alcohol or drug abuser is subject to these regulations. If a written consent to the disclosure is required, that consent may be given by an executor, administrator, or other personal representative appointed under applicable State law. If there is no such appointment the consent may be given by the patient’s spouse or, if none, by any responsible member of the patient’s family. 

TITLE 42–PUBLIC HEALTH CHAPTER I–PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES PART 2–CONFIDENTIALITY OF ALCOHOL AND DRUG ABUSE PATIENT RECORDS–Table of ContentsSubpart B–General Provisions Sec. 2.16 Security for written records.(a) Written records which are subject to these regulations must be maintained in a secure room, locked file cabinet, safe or other similar container when not in use; and (b) Each program shall adopt in writing procedures which regulate and control access to and use of written records which are subject to these regulations. 

TITLE 42–PUBLIC HEALTH CHAPTER I–PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES PART 2–CONFIDENTIALITY OF ALCOHOL AND DRUG ABUSE PATIENT RECORDS–Table of Contents Subpart B–General Provisions Sec. 2.17 Undercover agents and informants.(a) Restrictions on placement. Except as specifically authorized by a court order granted under Sec. 2.67 of these regulations, no program may knowingly employ, or enroll as a patient, any undercover agent or informant. (b) Restriction on use of information. No information obtained by an undercover agent or informant, whether or not that undercover agent or informant is placed in a program pursuant to an authorizing court order, may be used to criminally investigate or prosecute any patient. 

TITLE 42–PUBLIC HEALTH CHAPTER I–PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES PART 2–CONFIDENTIALITY OF ALCOHOL AND DRUG ABUSE PATIENT RECORDS–Table of Contents Subpart B–General Provisions Sec. 2.18 Restrictions on the use of identification cards.No person may require any patient to carry on his or her person while away from the program premises any card or other object which would identify the patient as an alcohol or drug abuser. This section does not prohibit a person from requiring patients to use or carry cards or other identification objects on the premises of a program. 

TITLE 42–PUBLIC HEALTH CHAPTER I–PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES PART 2–CONFIDENTIALITY OF ALCOHOL AND DRUG ABUSE PATIENT RECORDS–Table of Contents Subpart B–General Provisions Sec. 2.19 Disposition of records by discontinued programs.(a) General. If a program discontinues operations or is taken over or acquired by another program, it must purge patient identifying information from its records or destroy the records unless– (1) The patient who is the subject of the records gives written consent (meeting the requirements of Sec. 2.31) to a transfer of the records to the acquiring program or to any other program designated in the consent (the manner of obtaining this consent must minimize the likelihood of a disclosure of patient identifying information to a third party); or(2) There is a legal requirement that the records be kept for a period specified by law which does not expire until after the discontinuation or acquisition of the program.(b) Procedure where retention period required by law. If paragraph (a)(2) of this section applies, the records must be:(1) Sealed in envelopes or other containers labeled as follows: “Records of [insert name of program] required to be maintained under [insert citation to statute, regulation, court order or other legal authority requiring that records be kept] until a date not later than [insert appropriate date]”; and(2) Held under the restrictions of these regulations by a responsible person who must, as soon as practicable after the end of the retention period specified on the label, destroy the records.

TITLE 42–PUBLIC HEALTH CHAPTER I–PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES PART 2–CONFIDENTIALITY OF ALCOHOL AND DRUG ABUSE PATIENT RECORDS–Table of Contents Subpart B–General Provisions Sec. 2.20 Relationship to State laws.The statutes authorizing these regulations (42 U.S.C. 290ee-3 and 42 U.S.C. 290dd-3) do not preempt the field of law which they cover to the exclusion of all State laws in that field. If a disclosure permitted under these regulations is prohibited under State law, neither these regulations nor the authorizing statutes may be construed to authorize any violation of that State law. However, no State law may either authorize or compel any disclosure prohibited by these regulations. 

TITLE 42–PUBLIC HEALTH CHAPTER I–PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES PART 2–CONFIDENTIALITY OF ALCOHOL AND DRUG ABUSE PATIENT RECORDS–Table of Contents Subpart B–General Provisions Sec. 2.21 Relationship to Federal statutes protecting research subjects against compulsory disclosure of their identity.(a) Research privilege description. There may be concurrent coverage of patient identifying information by these regulations and by administrative action taken under: Section 303(a) of the Public Health Service Act (42 U.S.C. 242a(a) and the implementing regulations at 42 CFR part 2a); or section 502(c) of the Controlled Substances Act (21 U.S.C. 872(c) and the implementing regulations at 21 CFR 1316.21). These “research privilege” statutes confer on the Secretary of Health and Human Services and on the Attorney General, respectively, the power to authorize researchers conducting certain types of research to withhold from all persons not connected with the research the names and other identifying information concerning individuals who are the subjects of the research.(b) Effect of concurrent coverage. These regulations restrict the disclosure and use of information about patients, while administrative action taken under the research privilege statutes and implementing regulations protects a person engaged in applicable research from being compelled to disclose any identifying characteristics of the individuals who are the subjects of that research. The issuance under subpart E of these regulations of a court order authorizing a disclosure of information about a patient does not affect an exercise of authority under these research privilege statutes. However, the research privilage granted under 21 CFR 291.505(g) to treatment programs using methadone for maintenance treatment does not protect from compulsory disclosure any imformation which is permitted to be disclosed under those regulations. Thus, if a court order entered in accordance with subpart E of these regulations authorizes a methadone maintenance treatment program to disclose certain information about its patients, that program may not invoke the research privilege under 21 CFR 291.505(g) as a defense to a subpoena for that information. 

TITLE 42–PUBLIC HEALTH CHAPTER I–PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES PART 2–CONFIDENTIALITY OF ALCOHOL AND DRUG ABUSE PATIENT RECORDS–Table of Contents Subpart B–General Provisions Sec. 2.22 Notice to patients of Federal confidentiality requirements.(a) Notice required. At the time of admission or as soon threreafter as the patient is capable of rational communication, each program shall:(1) Communicate to the patient that Federal law and regulations protect the confidentiality of alcohol and drug abuse patient records; and (2) Give to the patient a summary in writing of the Federal law and regulations.(b) Required elements of written summary. The written summary of the Federal law and regulations must include:(1) A general description of the limited circumstances under which a program may acknowledge that an individual is present at a facility or disclose outside the program information identifying a patient as an alcohol or drug abuser.(2) A statement that violation of the Federal law and regulations by a program is a crime and that suspected violations may be reported to appropriate authorities in accordance with these regulations.(3) A statement that information related to a patient’s commission of a crime on the premises of the program or against personnel of the program is not protected.(4) A statement that reports of suspected child abuse and neglect made under State law to appropriate State or local authorities are notprotected.(5) A citation to the Federal law and regulations.(c) Program options. The program may devise its own notice or may use the sample notice in paragraph (d) to comply with the requirement to provide the patient with a summary in writing of the Federal law and regulations. In addition, the program may include in the written summary information concerning State law and any program policy not inconsistent with State and Federal law on the subject of confidentiality of alcohol and drug abuse patient records.(d) Sample notice. Confidentiality of Alcohol and Drug Abuse Patient RecordsThe confidentiality of alcohol and drug abuse patient records maintained by this program is protected by Federal law and regulations. Generally, the program may not say to a person outside the program that a patient attends the program, or disclose any information identifying a patient as an alcohol or drug abuser Unless:(1) The patient consents in writing:(2) The disclosure is allowed by a court order; or(3) The disclosure is made to medical personnel in a medical emergency or to qualified personnel for research, audit, or program evaluation.Violation of the Federal law and regulations by a program is a crime. Suspected violations may be reported to appropriate authorities in accordance with Federal regulations.Federal law and regulations do not protect any information about a crime committed by a patient either at the program or against any person who works for the program or about any threat to commit such a crime.Federal laws and regulations do not protect any information about suspected child abuse or neglect from being reported under State law to appropriate State or local authorities. 

TITLE 42–PUBLIC HEALTH CHAPTER I–PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES PART 2–CONFIDENTIALITY OF ALCOHOL AND DRUG ABUSE PATIENT RECORDS–Table of Content sSubpart B–General Provision Sec. 2.23 Patient access and restrictions on use.(a) Patient access not prohibited. These regulations do not prohibit a program from giving a patient access to his or her own records, including the opportunity to inspect and copy any records that the program maintains about the patient. The program is not required to obtain a patient’s written consent or other authorization under these regulations in order to provide such access to the patient. (b) Restriction on use of information. Information obtained by patient access to his or her patient record is subject to the restriction on use of his information to initiate or substantiate any criminal charges against the patient or to conduct any criminal investigation of the patient as provided for under Sec. 2.12(d)(1).

 TITLE 42–PUBLIC HEALTH CHAPTER I–PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES PART 2–CONFIDENTIALITY OF ALCOHOL AND DRUG ABUSE PATIENT RECORDS–Table of Contents Subpart C–Disclosures With Patient’s Consent Sec. 2.31 Form of written consent.(a) Required elements. A written consent to a disclosure under these regulations must include:(1) The specific name or general designation of the program or person permitted to make the disclosure.(2) The name or title of the individual or the name of the organization to which disclosure is to be made.(3) The name of the patient.(4) The purpose of the disclosure.(5) How much and what kind of information is to be disclosed.(6) The signature of the patient and, when required for a patient who is a minor, the signature of a person authorized to give consent under Sec. 2.14; or, when required for a patient who is incompetent or deceased, the signature of a person authorized to sign under Sec. 2.15 in lieu of the patient.(7) The date on which the consent is signed.(8) A statement that the consent is subject to revocation at any time except to the extent that the program or person which is to make the disclosure has already acted in reliance on it. Acting in reliance includes the provision of treatment services in reliance on a valid consent to disclose information to a third party payer.(9) The date, event, or condition upon which the consent will expire if not revoked before. This date, event, or condition must insure that the consent will last no longer than reasonably necessary to serve the purpose for which it is given.(b) Sample consent form. The following form complies with paragraph (a) of this section, but other elements may be added. 1. I (name of patient) [squ] Request [squ] Authorize:2. (name or general designation of program which is to make the disclosure)_____________________________________________________3. To disclose: (kind and amount of information to be disclosed)_________________________________________________4. To: (name or title of the person or organization to which disclosure is to be made)_________________________________________________5. For (purpose of the disclosure)_________________________________________________6. Date (on which this consent is signed)___________________________________________________7. Signature of patient__________________________________________________8. Signature of parent or guardian (where required)________________________________________________9. Signature of person authorized to sign in lieu of the patient (where required)________________________________________________10. This consent is subject to revocation at any time except to the extent that the program which is to make the disclosure has already taken action in reliance on it. If not previously revoked, this consent will terminate upon: (specific date, event, or condition)(c) Expired, deficient, or false consent. A disclosure may not be made on the basis of a consent which:(1) Has expired;(2) On its face substantially fails to conform to any of the requirements set forth in paragraph (a) of this section;(3) Is known to have been revoked; or(4) Is known, or through a reasonable effort could be known, by the person holding the records to be materially false. 

TITLE 42–PUBLIC HEALTH CHAPTER I–PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES PART 2–CONFIDENTIALITY OF ALCOHOL AND DRUG ABUSE PATIENT RECORDS–Table of Contents Subpart C–Disclosures With Patient’s Consent Sec. 2.32 Prohibition on redisclosure.  Notice to accompany disclosure. Each disclosure made with the patient’s written consent must be accompanied by the following written statement:This information has been disclosed to you from records protected by Federal confidentiality rules (42 CFR part 2). The Federal rules prohibit you from making any further disclosure of this information unless further disclosure is expressly permitted by the written consent of the person to whom it pertains or as otherwise permitted by 42 CFR part 2. A general authorization for the release of medical or other information is NOT sufficient for this purpose. The Federal rules restrict any use of the information to criminally investigate or prosecute any alcohol or drug abuse patient.[52 FR 21809, June 9, 1987; 52 FR 41997, Nov. 2, 1987] 

TITLE 42–PUBLIC HEALTH CHAPTER I–PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES PART 2–CONFIDENTIALITY OF ALCOHOL AND DRUG ABUSE PATIENT RECORDS–Table of Contents Subpart C–Disclosures With Patient’s Consent Sec. 2.33 Disclosures permitted with written consent.If a patient consents to a disclosure of his or her records under Sec. 2.31, a program may disclose those records in accordance with that consent to any individual or organization named in the consent, except that disclosures to central registries and in connection with criminal justice referrals must meet the requirements of Secs. 2.34 and 2.35, respectively. 

TITLE 42–PUBLIC HEALTH CHAPTER I–PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES PART 2–CONFIDENTIALITY OF ALCOHOL AND DRUG ABUSE PATIENT RECORDS–Table of Contents Subpart C–Disclosures With Patient’s Consent Sec. 2.34 Disclosures to prevent multiple enrollments in detoxification and maintenance treatment programs.(a) Definitions. For purposes of this section:Central registry means an organization which obtains from two or more member progams patient identifying information about individuals applying for maintenance treatment or detoxification treatment for the purpose of avoiding an individual’s concurrent enrollment in more than one program. Detoxification treatment means the dispensing of a narcotic drug in decreasing doses to an individual in order to reduce or eliminate adverse physiological or psychological effects incident to withdrawal from the sustained use of a drugs. Maintenance treatment means the dispensing of a narcotic drug in the treatment of an individual for dependence upon heroin or other morphine-like drugs.Member program means a detoxification treatment or maintenance treatment program which reports patient identifying information to a central registry and which is in the same State as that central registry or is not more than 125 miles from any border of the State in which the central registry is located. (b) Restrictions on disclosure. A program may disclose patient records to a central registry or to any detoxification or maintenance treatment program not more than 200 miles away for the purpose of preventing the multiple enrollment of a patient only if:(1) The disclosure is made when:(i) The patient is accepted for treatment;(ii) The type or dosage of the drug is changed; or(iii) The treatment is interrupted, resumed or terminated.(2) The disclosure is limited to:(i) Patient identifying information;(ii) Type and dosage of the drug; and(iii) Relevant dates.(3) The disclosure is made with the patient’s written consent meeting the requirements of Sec. 2.31, except that:(i) The consent must list the name and address of each central registry and each known detoxification or maintenance treatment program to which a disclosure will be made; and (ii) The consent may authorize a disclosure to any detoxification or maintenance treatment program established within 200 miles of the program after the consent is given without naming any such program.(c) Use of information limited to prevention of multiple enrollments. A central registry and any detoxification or maintenance treatment program to which information is disclosed to prevent multiple enrollments may not redisclose or use patient identifying information for any purpose other than the prevention of multiple enrollments unless authorized by a court order under subpart E of these regulations.(d) Permitted disclosure by a central registry to prevent a multiple enrollment. When a member program asks a central registry if an identified patient is enrolled in another member program and the registry determines that the patient is so enrolled, the registry may disclose(1) The name, address, and telephone number of the member program(s) in which the patient is already enrolled to the inquiring member program; and(2) The name, address, and telephone number of the inquiring member program to the member program(s) in which the patient is already enrolled. The member programs may communicate as necessary to verify that no error has been made and to prevent or eliminate any multiple enrollment.(e) Permitted disclosure by a detoxification or maintenance treatment program to prevent a multiple enrollment. A detoxification or maintenance treatment program which has received a disclosure under this section and has determined that the patient is already enrolled may communicate as necessary with the program making the disclosure to verify that no error has been made and to prevent or eliminate any multiple enrollment. 

TITLE 42–PUBLIC HEALTH CHAPTER I–PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICE SPART 2–CONFIDENTIALITY OF ALCOHOL AND DRUG ABUSE PATIENT RECORDS–Table of Contents  Subpart C–Disclosures With Patient’s Consent Sec. 2.35 Disclosures to elements of the criminal justice system which have referred patients.(a) A program may disclose information about a patient to those persons within the criminal justice system which have made participation in the program a condition of the disposition of any criminal proceedings against the patient or of the patient’s parole or other release from custody if:(1) The disclosure is made only to those individuals within the criminal justice system who have a need for the information in connection with their duty to monitor the patient’s progress (e.g., a prosecuting attorney who is withholding charges against the patient, a court granting pretrial or posttrial release, probation or parole officers responsible for supervision of the patient); and(2) The patient has signed a written consent meeting the requirements of Sec. 2.31 (except paragraph (a)(8) which is inconsistent with the revocation provisions of paragraph (c) of this section) and the requirements of paragraphs (b) and (c) of this section.(b) Duration of consent. The written consent must state the period during which it remains in effect. This period must be reasonable, taking into account:(1) The anticipated length of the treatment;(2) The type of criminal proceeding involved, the need for the information in connection with the final disposition of that proceeding, and when the final disposition will occur; and(3) Such other factors as the program, the patient, and the person(s) who will receive the disclosure consider pertinent.(c) Revocation of consent. The written consent must state that it is revocable upon the passage of a specified amount of time or the occurrence of a specified, ascertainable event. The time or occurrence upon which consent becomes revocable may be no later than the final disposition of the conditional release or other action in connection with which consent was given.(d) Restrictions on redisclosure and use. A person who receives patient information under this section may redisclose and use it only to carry out that person’s official duties with regard to the patient’s conditional release or other action in connection with which the consent was given. 

TITLE 42–PUBLIC HEALTH CHAPTER I–PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES PART 2–CONFIDENTIALITY OF ALCOHOL AND DRUG ABUSE PATIENT RECORDS–Table of Contents Subpart D–Disclosures Without Patient Consen Sec. 2.51 Medical emergencies.(a) General Rule. Under the procedures required by paragraph (c) of this section, patient identifying information may be disclosed to medical personnel who have a need for information about a patient for the purpose of treating a condition which poses an immediate threat to the health of any individual and which requires immediate medical intervention. (b) Special Rule. Patient identifying information may be disclosed to medical personnel of the Food and Drug Administration (FDA) who assert a reason to believe that the health of any individual may be threatened by an error in the manufacture, labeling, or sale of a product under FDA jurisdiction, and that the information will be used for the exclusive purpose of notifying patients or their physicians of potential dangers.(c) Procedures. Immediately following disclosure, the program shall document the disclosure in the patient’s records, setting forth in writing:(1) The name of the medical personnel to whom disclosure was made and their affiliation with any health care facility;(2) The name of the individual making the disclosure;(3) The date and time of the disclosure; and(4) The nature of the emergency (or error, if the report was to FDA).(Approved by the Office of Management and Budget under control number 0930-0099) 

TITLE 42–PUBLIC HEALTH CHAPTER I–PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES PART 2–CONFIDENTIALITY OF ALCOHOL AND DRUG ABUSE PATIENT RECORDS–Table of Contents Subpart D–Disclosures Without Patient Consent Sec. 2.52 Research activities. (a) Patient identifying information may be disclosed for the purpose of conducting scientific research if the program director makes a determination that the recipient of the patient identifying information:(1) Is qualified to conduct the research;(2) Has a research protocol under which the patient identifying information:(i) Will be maintained in accordance with the security requirements of Sec. 2.16 of these regulations (or more stringent requirements); and(ii) Will not be redisclosed except as permitted under paragraph (b) of this section; and(3) Has provided a satisfactory written statement that a group of three or more individuals who are independent of the research project has reviewed the protocol and determined that:(i) The rights and welfare of patients will be adequately protected; and(ii) The risks in disclosing patient identifying information are outweighed by the potential benefits of the research. (b) A person conducting research may disclose patient identifying information obtained under paragraph (a) of this section only back to the program from which that information was obtained and may not identify any individual patient in any report of that research or otherwise disclose patient identities.[52 FR 21809, June 9, 1987, as amended at 52 FR 41997, Nov. 2, 1987]

TITLE 42–PUBLIC HEALTH CHAPTER I–PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES PART 2–CONFIDENTIALITY OF ALCOHOL AND DRUG ABUSE PATIENT RECORDS–Table of Contents Subpart D–Disclosures Without Patient Consent Sec. 2.53 Audit and evaluation activities.(a) Records not copied or removed. If patient records are not copied or removed, patient identifying information may be disclosed in the course of a review of records on program premises to any person who agrees in writing to comply with the limitations on redisclosure and use in paragraph (d) of this section and who:(1) Performs the audit or evaluation activity on behalf of:(i) Any Federal, State, or local governmental agency which provides financial assistance to the program or is authorized by law to regulate its activities; or(ii) Any private person which provides financial assistance to the program, which is a third party payer covering patients in the program, or which is a quality improvement organization performing a utilization or quality control review; or(2) Is determined by the program director to be qualified to conduct the audit or evaluation activities.(b) Copying or removal of records. Records containing patient identifying information may be copied or removed from program premises by any person who:(1) Agrees in writing to:(i) Maintain the patient identifying information in accordance with the security requirements provided in Sec. 2.16 of these regulations (or more stringent requirements);(ii) Destroy all the patient identifying information upon completion of the audit or evaluation; and(iii) Comply with the limitations on disclosure and use in paragraph (d) of this section; and(2) Performs the audit or evaluation activity on behalf of:(i) Any Federal, State, or local governmental agency which provides financial assistance to the program or is authorized by law to regulate its activities; or(ii) Any private person which provides financial assistance to the program, which is a third part payer covering patients in the program, or which is a quality improvement organization performing a utilization or quality control review.(c) Medicare or Medicaid audit or evaluation. (1) For purposes of Medicare or Medicaid audit or evaluation under this section, audit or evaluation includes a civil or administrative investigation of the program by any Federal, State, or local agency responsible for oversight of the Medicare or Medicaid program and includes administrative enforcement, against the program by the agency, of any remedy authorized by law to be imposed as a result of the findings of the investigation.(2) Consistent with the definition of program in Sec. 2.11, program includes an employee of, or provider of medical services under, the program when the employee or provider is the subject of a civil investigation or administrative remedy, as those terms are used in paragraph (c)(1) of this section.(3) If a disclosure to a person is authorized under this section for a Medicare or Medicaid audit or evaluation, including a civil investigation or administrative remedy, as those terms are used in paragraph (c)(1) of this section, then a quality improvement organization which obtains the information under paragraph (a) or (b) may disclose the information to that person but only for purposes of Medicare or Medicaid audit or evaluation.(4) The provisions of this paragraph do not authorize the agency, the program, or any other person to disclose or use patient identifying information obtained during the audit or evaluation for any purposes other than those necessary to complete the Medicare or Medicaid audit or evaluation activity as specified in this paragraph.(d) Limitations on disclosure and use. Except as provided in paragraph (c) of this section, patient identifying information disclosed under this section may be disclosed only back to the program from which it was obtained and used only to carry out an audit or evaluation purpose or to investigate or prosecute criminal or other activities, as authorized by a court order entered under Sec. 2.66 of these regulations. 

TITLE 42–PUBLIC HEALTH CHAPTER I–PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES PART 2–CONFIDENTIALITY OF ALCOHOL AND DRUG ABUSE PATIENT RECORDS–Table of Contents Subpart E–Court Orders Authorizing Disclosure and UseSec. 2.61 Legal effect of order.(a) Effect. An order of a court of competent jurisdiction entered under this subpart is a unique kind of court order. Its only purpose is to authorize a disclosure or use of patient information which would otherwise be prohibited by 42 U.S.C. 290ee-3, 42 U.S.C. 290dd-3 and these regulations. Such an order does not compel disclosure. A subpoena or a similar legal mandate must be issued in order to compel disclosure. This mandate may be entered at the same time as and accompany an authorizing court order entered under these regulations.(b) Examples. (1) A person holding records subject to these regulations receives a subpoena for those records: a response to the subpoena is not permitted under the regulations unless an authorizing court order is entered. The person may not disclose the records in response to the subpoena unless a court of competent jurisdiction enters an authorizing order under these regulations.(2) An authorizing court order is entered under these regulations, but the person authorized does not want to make the disclosure. If there is no subpoena or other compulsory process or a subpoena for the records has expired or been quashed, that person may refuse to make the disclosure. Upon the entry of a valid subpoena or other compulsory process the person authorized to disclose must disclose, unless there is a valid legal defense to the process other than the confidentiality restrictions of these regulations.[52 FR 21809, June 9, 1987; 52 FR 42061, Nov. 2, 1987] 

TITLE 42–PUBLIC HEALTH CHAPTER I–PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES PART 2–CONFIDENTIALITY OF ALCOHOL AND DRUG ABUSE PATIENT RECORDS–Table of Contents Subpart E–Court Orders Authorizing Disclosure and Use Sec. 2.62 Order not applicable to records disclosed without consent to researchers, auditors and evaluators.  A court order under these regulations may not authorize qualified personnel, who have received patient identifying information without consent for the purpose of conducting research, audit or evaluation, to disclose that information or use it to conduct any criminal investigation or prosecution of a patient. However, a court order under Sec. 2.66 may authorize disclosure and use of records to investigate or prosecute qualified personnel holding the records.

 TITLE 42–PUBLIC HEALTH CHAPTER I–PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES PART 2–CONFIDENTIALITY OF ALCOHOL AND DRUG ABUSE PATIENT RECORDS–Table of Contents Subpart E–Court Orders Authorizing Disclosure and Use Sec. 2.63 Confidential communications. (a) A court order under these regulations may authorize disclosure of confidential communications made by a patient to a program in the course of diagnosis, treatment, or referral for treatment only if:(1) The disclosure is necessary to protect against an existing threat to life or of serious bodily injury, including circumstances which constitute suspected child abuse and neglect and verbal threats against third parties;(2) The disclosure is necessary in connection with investigation or prosecution of an extremely serious crime, such as one which directly threatens loss of life or serious bodily injury, including homicide, rape, kidnapping, armed robbery, assault with a deadly weapon, or child abuse and neglect; or(3) The disclosure is in connection with litigation or an administrative proceeding in which the patient offers testimony or other evidence pertaining to the content of the confidential communications. (b) [Reserved]

 TITLE 42–PUBLIC HEALTH CHAPTER I–PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES PART 2–CONFIDENTIALITY OF ALCOHOL AND DRUG ABUSE PATIENT RECORDS–Table of Contents Subpart E–Court Orders Authorizing Disclosure and Use Sec. 2.64 Procedures and criteria for orders authorizing disclosures for noncriminal purposes.(a) Application. An order authorizing the disclosure of patient records for purposes other than criminal investigation or prosecution may be applied for by any person having a legally recognized interest in the disclosure which is sought. The application may be filed separately or as part of a pending civil action in which it appears that the patient records are needed to provide evidence. An application must use a fictitious name, such as John Doe, to refer to any patient and may not contain or otherwise disclose any patient identifying information unless the patient is the applicant or has given a written consent (meeting the requirements of these regulations) to disclosure or the court has ordered the record of the proceeding sealed from public scrutiny.(b) Notice. The patient and the person holding the records from whom disclosure is sought must be given: (1) Adequate notice in a manner which will not disclose patient identifying information to other persons; and(2) An opportunity to file a written response to the application, or to appear in person, for the limited purpose of providing evidence on the statutory and regulatory criteria for the issuance of the court order.(c) Review of evidence: Conduct of hearing. Any oral argument, review of evidence, or hearing on the application must be held in the judge’s chambers or in some manner which ensures that patient identifying information is not disclosed to anyone other than a party to the proceeding, the patient, or the person holding the record, unless the patient requests an open hearing in a manner which meets the written consent requirements of these regulations. The proceeding may include an examination by the judge of the patient records referred to in the application.(d) Criteria for entry of order. An order under this section may be entered only if the court determines that good cause exists. To make this determination the court must find that:(1) Other ways of obtaining the information are not available or would not be effective; and(2) The public interest and need for the disclosure outweigh the potential injury to the patient, the physician-patient relationship and the treatment services.(e) Content of order. An order authorizing a disclosure must:(1) Limit disclosure to those parts of the patient’s record which are essential to fulfill the objective of the order;(2) Limit disclosure to those persons whose need for information is the basis for the order; and(3) Include such other measures as are necessary to limit disclosure for the protection of the patient, the physician-patient relationship and the treatment services; for example, sealing from public scrutiny the record of any proceeding for which disclosure of a patient’s record has been ordered. 

TITLE 42–PUBLIC HEALTH CHAPTER I–PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES PART 2–CONFIDENTIALITY OF ALCOHOL AND DRUG ABUSE PATIENT RECORDS–Table of Contents Subpart E–Court Orders Authorizing Disclosure and Use Sec. 2.65 Procedures and criteria for orders authorizing disclosure and use of records to criminally investigate or prosecute patients.(a) Application. An order authorizing the disclosure or use of patient records to criminally investigate or prosecute a patient may be applied for by the person holding the records or by any person conducting investigative or prosecutorial activities with respect to the enforcement of criminal laws. The application may be filed separately, as part of an application for a subpoena or other compulsory process, or in a pending criminal action. An application must use a fictitious name such as John Doe, to refer to any patient and may not contain or otherwise disclose patient identifying information unless the court has ordered the record of the proceeding sealed from public scrutiny. (b) Notice and hearing. Unless an order under Sec. 2.66 is sought with an order under this section, the person holding the records must be given:(1) Adequate notice (in a manner which will not disclose patient identifying information to third parties) of an application by a person performing a law enforcement function;(2) An opportunity to appear and be heard for the limited purpose of providing evidence on the statutory and regulatory criteria for the issuance of the court order; and(3) An opportunity to be represented by counsel independent of counsel for an applicant who is a person performing a law enforcement function.(c) Review of evidence: Conduct of hearings. Any oral argument, review of evidence, or hearing on the application shall be held in the judge’s chambers or in some other manner which ensures that patient identifying information is not disclosed to anyone other than a party to the proceedings, the patient, or the person holding the records. The proceeding may include an examination by the judge of the patient records referred to in the application.(d) Criteria. A court may authorize the disclosure and use of patient records for the purpose of conducting a criminal investigation or prosecution of a patient only if the court finds that all of the following criteria are met:(1) The crime involved is extremely serious, such as one which causes or directly threatens loss of life or serious bodily injury including homicide, rape, kidnapping, armed robbery, assault with a deadly weapon, and child abuse and neglect.(2) There is a reasonable likelihood that the records will disclose information of substantial value in the investigation or prosecution.(3) Other ways of obtaining the information are not available or would not be effective.(4) The potential injury to the patient, to the physician-patient relationship and to the ability of the program to provide services to other patients is outweighed by the public interest and the need for the disclosure.(5) If the applicant is a person performing a law enforcement function that:(i) The person holding the records has been afforded the opportunity to be represented by independent counsel; and(ii) Any person holding the records which is an entity within Federal, State, or local government has in fact been represented by counsel independent of the applicant.(e) Content of order. Any order authorizing a disclosure or use of patient records under this section must:(1) Limit disclosure and use to those parts of the patient’s record which are essential to fulfill the objective of the order;(2) Limit disclosure to those law enforcement and prosecutorial officials who are responsible for, or are conducting, the investigation or prosecution, and limit their use of the records to investigation and prosecution of extremely serious crime or suspected crime specified in the application; and(3) Include such other measures as are necessary to limit disclosure and use to the fulfillment of only that public interest and need found by the court. [52 FR 21809, June 9, 1987; 52 FR 42061, Nov. 2, 1987]

 TITLE 42–PUBLIC HEALTH CHAPTER I–PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES PART 2–CONFIDENTIALITY OF ALCOHOL AND DRUG ABUSE PATIENT RECORDS–Table of Contents Subpart E–Court Orders Authorizing Disclosure and Use Sec. 2.66 Procedures and criteria for orders authorizing disclosure and use of records to investigate or prosecute a program or the person holding the records.(a) Application. (1) An order authorizing the disclosure or use of patient records to criminally or administratively investigate or prosecute a program or the person holding the records (or employees or agents of that program or person) may be applied for by any administrative, regulatory, supervisory, investigative, law enforcement, or prosecutorial agency having jurisdiction over the program’s or person’s activities. (2) The application may be filed separately or as part of a pending civil or criminal action against a program or the person holding the records (or agents or employees of the program or person) in which it appears that the patient records are needed to provide material evidence. The application must use a fictitious name, such as John Doe, to refer to any patient and may not contain or otherwise disclose any patient identifying information unless the court has ordered the record of the proceeding sealed from public scrutiny or the patient has given a written consent (meeting the requirements of Sec. 2.31 of these regulations) to that disclosure.(b) Notice not required. An application under this section may, in the discretion of the court, be granted without notice. Although no express notice is required to the program, to the person holding the records, or to any patient whose records are to be disclosed, upon implementation of an order so granted any of the above persons must be afforded an opportunity to seek revocation or amendment of that order, limited to the presentation of evidence on the statutory and regulatory criteria for the issuance of the court order.(c) Requirements for order. An order under this section must be entered in accordance with, and comply with the requirements of, paragraphs (d) and (e) of Sec. 2.64 of these regulations.(d) Limitations on disclosure and use of patient identifying information: (1) An order entered under this section must require the deletion of patient identifying information from any documents made available to the public.(2) No information obtained under this section may be used to conduct any investigation or prosecution of a patient, or be used as the basis for an application for an order under Sec. 2.65 of these regulations. 

TITLE 42–PUBLIC HEALTH CHAPTER I–PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES PART 2–CONFIDENTIALITY OF ALCOHOL AND DRUG ABUSE PATIENT RECORDS–Table of Contents Subpart E–Court Orders Authorizing Disclosure and Use Sec. 2.67 Orders authorizing the use of undercover agents and informants to criminally investigate employees or agents of a program.(a) Application. A court order authorizing the placement of an undercover agent or informant in a program as an employee or patient may be applied for by any law enforcement or prosecutorial agency which has reason to believe that employees or agents of the program are engaged in criminal misconduct.(b) Notice. The program director must be given adequate notice of the application and an opportunity to appear and be heard (for the limited purpose of providing evidence on the statutory and regulatory criteria for the issuance of the court order), unless the application asserts a belief that: (1) The program director is involved in the criminal activities to be investigated by the undercover agent or informant; or(2) The program director will intentionally or unintentionally disclose the proposed placement of an undercover agent or informant to the employees or agents who are suspected of criminal activities.(c) Criteria. An order under this section may be entered only if the court determines that good cause exists. To make this determination the court must find:(1) There is reason to believe that an employee or agent of the program is engaged in criminal activity;(2) Other ways of obtaining evidence of this criminal activity are not available or would not be effective; and(3) The public interest and need for the placement of an undercover agent or informant in the program outweigh the potential injury to patients of the program, physician-patient relationships and the treatment services.(d) Content of order. An order authorizing the placement of an undercover agent or informant in a program must:(1) Specifically authorize the placement of an undercover agent or an informant;(2) Limit the total period of the placement to six months;(3) Prohibit the undercover agent or informant from disclosing any patient identifying information obtained from the placement except as necessary to criminally investigate or prosecute employees or agents of the program; and(4) Include any other measures which are appropriate to limit any potential disruption of the program by the placement and any potential for a real or apparent breach of patient confidentiality; for example, sealing from public scrutiny the record of any proceeding for which disclosure of a patient’s record has been ordered.(e) Limitation on use of information. No information obtained by an undercover agent or inform

 

 

 

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