Many jurisdictions require that drug abuse by pregnant women and / or substance exposure in an infant be reported to authorities.
This sometimes poses a dilemma to hospitals, clinics, and treatment programs, which must also follow Federal regulations concerning the confidentiality of alcohol and drug abuse patient information (42 CFR Part 2).
Federal laws take precedence over State laws, except in cases where child abuse is concerned.
Since 1986, a law has been in effect declaring that the State's child abuse laws should be adhered to in the area of child abuse.
Hospitals, clinics, and treatment program staff must be aware of their State's laws, regulations, and reporting requirements (e.g., with respect to mental health, HIV, and child protection).
Likewise, patients in treatment programs should be told what confidentiality protection their program offers, and when these protections may be suspended.
For instance, a program can be subpoenaed to release confidential treatment records or be required by State law to report drug use by a pregnant woman or the mother of a drug-exposed infant.
Confidentiality and reporting laws and regulations have a significant impact on service providers.
The challenge is to design a treatment program that complies with Federal and State laws and regulations, and at the same time provides services that are responsive to the special needs of pregnant, substance-using women and families of drug-exposed children.
Treatment program staff must be trained to deal with the conflicts between confidentiality and reporting issues, and to recognize how these conflicts affect their ability to deliver services.
State and local laws requiring that maternal substance abuse and / or fetal drug exposure be reported to authorities have a significant impact on pregnant women, mothers, and their children.
Such a report could provide impetus for removing children from their mother's care and putting them in protective custody or in foster care.
Knowing that such a report was in the offing, the woman might forego her prenatal care or the followup care provided to her and her infant.
The following guidelines explain Federal regulations on confidentiality of drug and alcohol referral and treatment information and can assist programs in their efforts to design effective and appropriate procedures for treating pregnant, substance-using women and mothers of drug-exposed infants.
Prohibition of Disclosure - What follows is a summary explanation of the Federal confidentiality regulations, called the General Rule Prohibiting Disclosure:
Except under certain limited conditions, Federal confidentiality regulations prohibit the disclosure of records or other information concerning any patient in a Federally assisted alcohol or drug abuse program (42 CFR, Secs. 2.12; 2.13(a)).
This prohibition of unauthorized disclosure applies whether or not the person seeking information already has the information, has other means of obtaining it, enjoys official status, has obtained a subpoena or warrant, or is authorized by State law (42 CFR, Secs. 2.13(b); 2.20).
Any State provision that would permit or require a disclosure prohibited by the Federal rules is invalid.
However, States may require greater confidentiality than the Federal regulations (42 CFR, Sec. 2.20).
Exceptions - Although the general rule is that patient-identifying information may not be disclosed, the regulations set out a number of conditions permitting limited disclosures upon patient consent, and a few circumstances in which disclosures may be made without patient consent.
Each of these conditions or circumstances has its own requirements and limitations.
In general, permitted disclosures fall into the following categories:
Disclosures made with written informed consent of the patient
Disclosures made pursuant to internal program communications
Disclosures made in response to a court order
Disclosures made pursuant to a crime at the treatment program or against program personnel
Disclosures made for research or audit purposes
Disclosures made when an individual is obligated by State law to report reasonable suspicions of child abuse or neglect
Disclosures made pursuant to a qualified service organization agreement
Disclosures made pursuant to a medical emergency.
A medical emergency is defined as a situation in which:
The individual's life is in immediate danger without emergency treatment, and
He or she is unable (for example, unconscious) or incompetent to give consent, and
The person authorized by law to give consent for the individual is unavailable.
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