1. This chapter was written for the Consensus Panel by Margaret K.
Brooks, Esq., Montclair, New Jersey. 2. Citations in the form "§ 2..." refer to specific sections of 42 Code of Federal Regulations (C.F.R.) Part 2. 3. Only adolescents who have "applied for or received" services from a program are protected. If an adolescent has not yet been evaluated or counseled by a program and has not herself sought help from the program, the program is free to discuss the adolescent's substance use disorders with others. But, from the time the adolescent applies for services or the program first conducts an evaluation or begins to counsel the youth, the Federal regulations govern. 4. Note, however, that no information that is obtained from a program (even if the patient consents) may be used in a criminal investigation or prosecution of a patient unless a court order has been issued under the special circumstances set forth in §2.65. 42 U.S.C. §§290dd-3(c), ee-3(c); 42 C.F.R. §12(a),(d). 5. In States where parental consent is not required for treatment, the regulations permit a program to withhold services if the minor will not authorize a disclosure that the program needs in order to obtain financial reimbursement for that minor's treatment. The regulations add a warning, however, that such action might violate a State or local law (§2.14(b)). 6. If an attorney is not immediately available, and someone wants information about child abuse and neglect rules within a particular State, contact the social service or child welfare agency for that area. Nationally, the Child Welfare League of America (CWLA) can also be contacted at (202) 638-2952. (Federal definitions of these terms appear in the Child Abuse Prevention and Treatment Act (CAPTA), 42 U.S.C. _5106g; available on the Internet at http://www.calib.com/nccanch/pubs/ whatis.htm.) 7. Although the rules concerning criminal justice system consent probably apply to proceedings in juvenile court involving acts that, if committed by an adult, would be a crime, there appear to be no cases on point. It is less likely that the special criminal justice system consent rules would apply when an adolescent is adjudicated (found to be) in need of special supervision (e.g., "persons in need of supervision"), but not guilty of a criminal act. 8. For an explanation about how to deal with subpoenas and search and arrest warrants, see Confidentiality: A Guide to the Federal Laws and Regulations, published in 1995 by the Legal Action Center, 153 Waverly Place, New York, NY 10014. 9. However, if the information is being sought to investigate or prosecute a patient for a crime, only the program need be notified (§2.65). And if the information is sought to investigate or prosecute the program, no prior notice at all is required (§2.66). 10. If the purpose of seeking the court order is to obtain authorization to disclose information in order to investigate or prosecute a patient for a crime, the court must also find that: (1) the crime involved is extremely serious, such as an act causing or threatening to cause death or serious injury; (2) the records sought are likely to contain information of significance to the investigation or prosecution; (3) there is no other practical way to obtain the information; and (4) the public interest in disclosure outweighs any actual or potential harm to the patient, the doctor--patient relationship, and the ability of the program to provide services to other patients. When law enforcement personnel seek the order, the court must also find that the program had an opportunity to be represented by independent counsel ("counsel" is an appointed lawyer). If the program is a governmental entity, it must be represented by counsel (§2.65(d)). 11. For a more complete explanation of the requirements of §2.52 and 2.53, see TIP 14, Developing State Outcomes Monitoring Systems for Alcohol and Other Drug Abuse Treatment, pp. 58-59 (CSAT, 1995a). 12. Staff in juvenile detention facilities, who work in institutions where resources are sometimes stretched to the limit, may experience problems with having access to equipment that can be locked. However, procedures must be worked out that follow the intention of the regulations as closely as possible.
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