Detoxification From Alcohol and Other Drugs Treatment Improvement Protocol (TIP) Series 19
Appendix E -- Legal and Ethical Issues for Detoxification Programs 1
A host of legal and ethical issues affect the operation of alcohol
and other drug (AOD) detoxification programs. Some have to do with
consent to treat. For example, staff members often deal with patients
who are inebriated or intoxicated. How can they obtain a consent to
enter detoxification treatment from such individuals? Are there special
consent issues when the patient is a minor?
The staff of detoxification programs are also concerned about the
standards of treatment that will apply, especially as managed care
becomes more commonplace. Will the staff be held liable for any
decisions of a managed care entity that result in harm to a patient? If
an insurance carrier decides it will not cover an additional day of
detoxification treatment when the program believes an additional day is
necessary, what should staff members do?
In some States, detoxification programs treat patients who have been
brought in involuntarily by the police or committed to treatment by the
court system. What are the legal responsibilities of staff in such
cases? Prisons and jails sometimes maintain detoxification units. Do
special standards apply to the professionals practicing in such
facilities?
Other legal and ethical issues arise during the daily operation of
detoxification programs. Some programs use medications, including
scheduled drugs, to help ease the detoxification process. What laws
should staff be aware of with regard to the use of these medications?
How should staff handle drugs that patients bring into the program when
they are admitted?
Finally, additional issues arise because of the Federal laws and
regulations guaranteeing confidentiality of information about patients.
How can a detoxification program and the diverse agencies responsible
for the patient's welfare communicate without violating these rules?
How should a program, for example, gather information from other
(collateral) sources, such as relatives, employers, criminal justice
agencies, schools, or medical personnel? May a program contact a parent
of a minor patient without the minor's consent? May a program
communicate with an employer who has referred a patient to treatment?
What should a program do if a patient does not want to disclose his or
her treatment to an insurance carrier? Are there special rules about
sharing information with criminal justice agencies? If the patient is
threatening harm to him- or herself or another, may the program call the
authorities? How can programs handle intoxicated patients who decide
not to enter detoxification and insist on driving home? May programs
call the police if a patient becomes violent? Should they report
suspected child abuse or neglect?
This chapter attempts to answer these and other questions. It is
divided into five sections:
An overview of consent to treatment, standards of care, and
medication and drug control
Federal laws and regulations protecting the patient's right to
confidentiality
Rules governing the use of consent forms
Rules governing communication of patient information
Exceptions to rules prohibiting disclosure of patient
information.
The answers to many of the questions addressed in this chapter are
governed by State rather than Federal laws, and the laws vary from State
to State. Consequently, while this chapter offers general advice
concerning management of a patient who is too intoxicated to give
informed consent, program staff who are faced with this situation should
consult with a local attorney who is familiar with this area and the
related issue of confidentiality. In some States, the law is still
developing. As an example, a program's duty to warn of a patient's
threat to harm others is constantly changing as State courts consider
current cases. Programs dealing with this and other issues need
up-to-the-minute legal counsel.
Adults generally have the right to consent to or to refuse
treatment -- a right that is grounded in State law, judicial decision, and
the United States Constitution. The right to consent to or refuse
treatment -- in other words, to make an informed choice --is normally based
upon a process: The treatment provider presents the patient with a
diagnosis, a prognosis, a description of available alternative
treatments and their risks and benefits, and a prediction of the likely
outcome if there is no treatment. This process requires that the
patient have the ability, sometimes called "decisional capacity," to
make an informed choice.
Detoxification programs, perhaps more than any other kind of AOD
abuse treatment program, deal with patients whose capacity to make
rational decisions may be impaired. Persons who are intoxicated often
demonstrate diminished mental capacity. Individuals who are
incapacitated by AODs may be unconscious, or their judgment may be so
impaired that they are incapable of making a rational decision about
their basic needs, including their need for treatment. How can
detoxification programs secure consent when the patient's decisional
capacity is diminished?
Staff should assess each patient in order to determine whether he or
she is able to give informed consent. If a patient is not able to do so
because he or she is intoxicated or incapacitated by AOD use, the
program should obtain consent as soon as the patient has regained his or
her faculties. In the meantime, the program may obtain consent to treat
from a relative or parent, if the patient is accompanied to the program.
(In obtaining consent, the program must be aware of the Federal
confidentiality laws, as described later in this chapter.) The validity
of a third party's consent may depend on State law.
Many States have passed laws permitting minors to consent to AOD
abuse treatment without parental involvement. Program staff should
become familiar with the laws in their State, by consulting either with
their single State agency (SSA) or an attorney familiar with the law in
this area. 2
In those States that require parental consent for treatment, programs
must be aware that the Federal confidentiality regulations require them
to obtain a minor's consent before they contact the minor's parent (42
C.F.R. '2.14). 3 Thus, if a minor
seeks treatment but refuses to authorize the program to speak to his or
her parent, the program may inform the minor that it cannot provide
services unless he or she consents to have the program contact the
parent.
The Federal regulations do contain one exception. A program director
may communicate with a minor's parents without his or her consent
provided that
The program director believes that the minor, because of
extreme youth or medical condition, does not have the capacity to decide
rationally whether to consent to the notification; and
The program director believes the disclosure is necessary to cope
with a substantial threat to the life or well-being of the minor or
someone else.
If these two conditions do not exist, the program must explain to the
minor that, while he or she has the right to refuse to consent to any
communication with a parent, the program can provide no services without
such communication and parental consent, §2.14(d). Section 2.14(d)
applies only to applicants for services. It does not apply to minors
who are already patients; their consent to communicate with their
parents is always required, as explained below.
Although programs in those States that permit minors to consent to
treatment do not need to be concerned about whether they may provide
services, they may still have to confront the fact that, in the absence
of parental consent, it may be impossible to secure payment for these
services. In States where parental consent is not required for
treatment, the Federal 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.
Such a practice, however, may abridge State or local law.
The staff members of AOD detoxification programs expect the care they
provide their patients to come under the scrutiny of licensing or
accrediting agencies, peer review organizations, and patient advocacy
groups. With the advent of managed care, treatment providers are
finding themselves under the scrutiny of a fourth group: third-party
payers, who are interested not only in quality of care but also in cost
containment.
Oversight by a managed care entity may be most problematic in cases
where that entity disagrees with the detoxification program's judgment
that a patient needs another day in the program and informs the program
that it will not pay for such care. One option is for staff to explain
the problem to the patient and try to obtain his or her agreement to pay
for the additional day of treatment. 4
In many cases, the patient will be unable to do so. A second option is
to try to arrange to have the patient admitted to a publicly funded
program. A third option is to discharge the patient.
From a legal standpoint, if public care is unavailable and the
patient cannot pay, programs should probably continue to treat the
patient. The law in this area is unsettled. If the program discharges
a patient against the judgment of its staff and the patient's outcome is
adversely affected, the patient can sue the program for malpractice.
This is an unfortunate situation, even if the program wins or convinces
the court to place responsibility where it belongs -- on the managed care
entity. Programs should also be aware that it is possible to get
third-party payers to change a negative decision. Should this need
arise, consultation with an attorney who can help them advocate for the
patient is helpful.
In some States, detoxification programs handle patients who are
brought in by the police or by relatives or who are "involuntarily
committed" to treatment by the courts. (Involuntary commitment is also
known as "protective custody" and "emergency commitment.") States that
place the duty to accept involuntary patients on programs often grant
them immunity from criminal and civil liability. Such immunity,
however, does not protect a program against a malpractice claim.
Jail or prison inmates are another group of involuntary patients.
Persons who are incarcerated are entitled to adequate medical care and
can sue a provider for malpractice or negligence. 5Thus, involuntary patients are entitled
to care that generally meets professional standards. Professionals who
manage programs in prisons or jails or whose programs accept involuntary
patients should stay abreast of standards in this area that have been
developed by professional organizations and government agencies.
Programs often use medications, including some scheduled drugs, to
help patients through the detoxification process. Program staff must be
aware of Federal and State laws and regulations governing the
dispensing, storage, and inventory of all medications. These laws and
regulations often require that medications be dispensed by certain
classes of professionals. Separate provisions often govern the storage,
prescription, and dispensing of scheduled drugs. Programs may inquire
about such regulations from their SSAs and State departments of health,
the Federal Drug Enforcement Administration, or the Federal Food and
Drug Administration.
Patients sometimes enter AOD detoxification with drugs on their
person or in their luggage. Staff may wish to search all newly admitted
patients and the belongings they bring with them. The safest approach
is to tell the patient at admission that this is a standard part of the
process and that he or she must agree to the search in order to enter
detoxification. The program also may incorporate this notice in its
admission papers, thereby ensuring that the patient agrees to it in
writing.
If a staff member finds drugs on a patient or in a patient's luggage,
what should the program do? State regulations sometimes govern how a
program may dispose of drugs. They may require, for example, that the
drugs be flushed down the toilet, destroyed, or turned over to the
police. 6 (The Federal
confidentiality laws and regulations, however, prohibit programs from
turning patients who are in possession of drugs over to the police.) If
a program does destroy drugs brought into treatment by patients, it is
advisable for staff members responsible for such destruction to carry it
out under observation and maintain a record of the act, so that a
patient cannot later make a false accusation about what occurred. State
regulations also govern the methods for handling prescription and
over-the-counter medications that patients bring into treatment.
Programs should check with their SSA for further guidance about State
mandates.
Although programs cannot turn patients with illegal drugs over to the
police, no such restrictions apply to visitors who enter the program
facility with drugs. As long as no disclosure is made about a patient,
such persons may be reported to the police. A program that plans to
search visitors for drugs must obtain their consent, although it may
make visiting privileges contingent on consent to search. The use of
force should be avoided, as a visitor could sue the program for battery
or false imprisonment.
Two Federal laws (42 U.S.C. ''290dd-2 (1992) and a set of Federal
regulations (C.F.R. Part 2) guarantee the strict confidentiality of
information about all persons receiving AOD abuse prevention and
treatment services. 7
They are designed to protect privacy rights and thereby attract individuals
into treatment. The regulations are more restrictive of communications than
are those governing the doctor-patient relationship or the
attorney-client privilege. Violating the regulations is punishable by a
fine of up to $500 for a first offense or up to $5,000 for each
subsequent offense ('2.4).
Although some persons may view the restrictions that Federal
regulations place on communications as a hindrance, if not a barrier, to
program goals, due foresight can eliminate most of the problems that
arise from the regulations. Familiarity with the regulations will
facilitate communication and minimize the incidence of
confidentiality-related conflicts among program, patient, and outside
agency.
Any program that specializes, in whole or in part, in providing
detoxification, treatment, counseling and assessment, and referral
services, or a combination thereof, for patients with alcohol or other
drug problems must comply with the Federal confidentiality regulations,
'2.12(e). It is the kind of services provided, not the label, that
determines whether a program must comply with the Federal law. Calling
itself a "prevention program" does not insulate a program that also
offers treatment services from the need to comply with confidentiality
regulations. Although the Federal regulations apply only to programs
that receive Federal assistance, the word "assistance" is broadly
interpreted and includes indirect forms of Federal aid such as
tax-exempt status or State or local funding that is derived, in whole or
in part, from the Federal Government.
The Federal confidentiality laws and regulations protect any
information about a patient if the patient has applied for or received
any alcohol- or drug-abuse-related services -- including assessment,
diagnosis, detoxification, counseling, group counseling, treatment, and
referral for treatment -- from a covered program. The restrictions on
disclosure apply to any information that would identify the patient as
an AOD abuser, either directly or by implication. The rule applies from
the moment the patient makes an appointment. It applies to patients who
are civilly or involuntarily committed, minor patients, patients who are
mandated into treatment by the criminal justice system, and former
patients. Finally, the rule applies whether or not the person making
the inquiry already has the information, has other ways of getting it,
enjoys official status, is authorized by State law, or comes armed with
a subpoena or search warrant. 8
Information that is protected by the Federal confidentiality
regulations may always be disclosed after the patient has signed a
proper consent form. (As explained earlier in this chapter, if the
patient is a minor, parental consent must also be obtained in some
States.) The regulations also permit disclosure without the patient's
consent in several situations, including communicating information to
medical personnel during a medical emergency or reporting child abuse to
the authorities.
The most commonly used exception to the general rule prohibiting
disclosures is for a program to obtain the patient's consent. The
regulations' requirements regarding consent are somewhat unusual and
strict and must be carefully followed.
Disclosures are permissible if a patient has signed a valid consent
form that has not expired or been revoked ('2.31). 9 According to this section, a proper
consent form must be in writing and must contain each of the items that
appear in Exhibit E-1.
A general medical release form, or any consent form that does not
contain all of the elements listed above, is not acceptable. A sample
consent form may be found in Exhibit E-2.
The following required items merit further explanation:
The purpose of the disclosure
How much and what kind of information will be disclosed.
These two items are closely related. All disclosures, especially
those made pursuant to a consent form, must be limited to information
that is necessary to accomplish the need for or purpose of the
disclosure, '2.13(a). It would be improper to disclose everything in a
patient's file if the person making the request needed only one specific
piece of information.
In completing a consent form, one must determine the purpose of or
need for the communication of information. Once this has been
identified, it is easier to determine how much and what kind of
information will be disclosed and to restrict the disclosure to what is
essential to accomplish the identified need or purpose. As an
illustration, if a patient needs to have the fact that he or she has
entered a detoxification program verified in order to be eligible for a
benefit program, the purpose of the disclosure would be "to verify
treatment status," and the amount and kind of information to be
disclosed would be "enrollment in treatment." The disclosure would then
be limited to a statement that "Jane Doe [the patient] is receiving
counseling at XYZ Program."
The patient's right to revoke consent
The patient may revoke consent at any time, and the consent form must
include a statement to this effect. Revocation need not be in writing.
If a program has made a disclosure prior to the revocation, the program
has "acted in reliance" on the consent and is not required to try to
retrieve the information it has already disclosed.
The regulations state that acting in reliance includes providing
services in reliance on a consent form permitting disclosures to a
third-party payer. Thus, a program may bill the third-party payer for
past services to the patient even after consent has been revoked. A
program may not, however, make any disclosure to the third-party payer
in order to receive reimbursement for services provided after the
patient has revoked consent '2.31(a)(8).
Expiration of the consent form
The form must also contain a date, an event, or a condition on which
it will expire, if not previously revoked. A consent must last "no
longer than reasonably necessary to serve the purpose for which it is
given," '2.31(a)(9). If the purpose of the disclosure is expected to be
accomplished in 5 or 10 days, it is better to stipulate that amount of
time rather than to request a longer period or have a uniform 60- or
90-day expiration date for all forms.
The consent form may specify an event or a condition for expiration,
rather than a date. For example, if a patient has been placed on
probation at work on the condition that he or she attend the
detoxification program, the consent form should not expire until the
expected time of completion of the probationary period. Alternatively,
if a patient is being referred by the program to a specialist for a
single appointment, the consent form should provide that it will expire
after he or she has seen "Dr. X," unless the patient is expected to need
ongoing consultation with the specialist.
Signatures of minors and parental consent
In order for a program to release information about a minor, even to
his or her parent or guardian, the minor must have signed a consent
form. The program must obtain the parent's signature only if it was
required by State law to obtain parental permission before providing
treatment to the minor ('2.14). ("Parent" includes parent, guardian, or
other person legally responsible for the minor.) In other words, if
State law does not require the program to get parental consent in order
to provide services to a minor, parental consent is not required to make
disclosures, '2.14(b). If, by contrast, State law requires parental
consent to provide services to minors, parental consent also is required
to make any disclosures. The program must always obtain the minor's
consent for disclosures; it cannot rely on the parent's signature alone.
The single limited exception to this rule has been discussed in Section
I.A.2 above.
Once the consent form has been properly completed, one formal
requirement remains. Any disclosure made with written patient consent
must be accompanied by a written statement that the information
disclosed is protected by Federal law and that the recipient may not
make any further disclosure unless permitted by the regulations ('2.32).
This statement, not the consent form itself, should be delivered and
explained to the recipient at the time of disclosure or earlier.
The prohibition on redisclosure is clear and strict. Those who
receive the notice are prohibited from rereleasing information except as
permitted by the regulations. A patient may, of course, sign a consent
form authorizing such a redisclosure. A sample Notice of Prohibition
appears in Exhibit E-3.
The fact that a patient has signed a proper consent form authorizing
the release of information does not force a program to make the proposed
disclosure, unless the program has also received a subpoena or court
order, ''2.3(b); 2.61(a)(b). The only obligation the program has is to
refuse to honor a consent that is expired, deficient, or otherwise known
to be revoked, false, or invalid, '2.31(c).
In most cases, the decision whether or not to make a disclosure
pursuant to a consent form is within the discretion of the program,
unless State law requires or prohibits disclosure once consent is given.
In general, it is best to follow this rule: disclose only what is
necessary, for only as long as is necessary, in light of the purpose of
the communication.
Making inquiries of parents, other relatives, health care providers,
employers, schools, or criminal justice agencies might seem at first
glance to pose no risk to a patient's right to confidentiality,
particularly if the person or entity approached for information referred
the patient to treatment. Nonetheless, it does.
When a program that screens, assesses, or treats a patient asks a
relative or parent, a doctor, an employer, or a school to verify
information it has obtained from the patient, it is making a
"patient-identifying disclosure." Patient-identifying information is
information that identifies someone as an AOD abuser. In other words,
when program staff seek information from other sources, they are letting
these sources know that the patient has asked for detoxification
services. The Federal regulations generally prohibit this kind of
disclosure, unless the patient consents.
How should a program go about making such requests? The easiest way
is to get the patient's consent to contact the relative, doctor,
employer, school, or health care facility. When filling out the consent
form, staff should give thought to the "purpose of the disclosure" and
"how much and what kind of information is to be disclosed." For
example, if a program is assessing a patient for treatment and seeks
records from a mental health provider, the purpose of the disclosure
would be "to obtain mental health treatment records to complete the
assessment." The "kind of information disclosed" would be limited to a
statement that "Robert Roe (the patient) is being assessed by the XYZ
Program." No other information about Robert Roe would be released. If
the program not only seeks records but also wishes to discuss with the
mental health provider the treatment he or she provided the patient, the
purpose of the disclosure would be "to discuss mental health treatment
provided to Robert Roe by the mental health program." If the program
merely seeks information, the kind of information disclosed would, as in
the example above, be limited to a statement that "Robert Roe is being
assessed by the XYZ Program;" however, if the program needs to disclose
information it has gained in its assessment of Robert Roe to the mental
health provider in order to further the discussion or coordinate care,
the kind of information disclosed would be "assessment information about
Robert Roe."
A program that routinely seeks collateral information from many
sources could consider asking the patient to sign a consent form that
permits it to make a disclosure for purposes of seeking information from
collateral sources to any one of a number of entities or persons listed
on the consent form. Such a form must still include "the name or title
of the individual or the name of the organization" for each collateral
source the program may contact.
Even when information is disclosed over the telephone, program staff
are required to notify the recipient of the information of the
prohibition on redisclosure. Mention should be made of this restriction
during the conversation; for example, the staff member could say, "I'll
be sending you a written statement that the information I gave you about
Mr. Roe may not be redisclosed."
Communications with employers may warrant special consideration.
When a patient enters treatment voluntarily, program staff should
maintain an open mind about whether communications with an employer
would be beneficial to the patient. A patient who tells program staff
that his or her employer will not be sympathetic about the decision to
enter treatment may well have an accurate picture of the employer's
attitude. Should staff insist on communicating with the employer, the
patient may lose his or her job. If such communication takes place
without the patient's consent, the program may be faced with a
lawsuit.
Programs must obtain a patient's written consent on the form required
by the Federal regulations in order to communicate with any third-party
payer who may be responsible for funding the patient's treatment. What
should programs do in these circumstances?
The program clearly cannot make a disclosure to a third-party payer
without the patient's consent. If the third-party payer is the
patient's employer, the program would not only be violating the Federal
regulations Some patients do not want their treatment reported to the
insurer. Patients whose employers are self-insured may fear they will
be fired, demoted, or disciplined, should their employer learn they have
a substance abuse problem. 10Patients whose treatment is covered by health insurance may fear
they will lose their benefits and be unable to obtain other coverage
once their current insurer discovers they have been treated for a
substance abuse problem. 11 but also
would be risking a lawsuit, should the patient be fired or disciplined.
If the third-party payer is an insurance company, the program is taking
similar risks: If the patient's insurance is canceled or he or she
cannot obtain coverage elsewhere, the program may face a lawsuit.
If a patient does not want the insurance carrier to be notified and
is unable to pay for treatment, the program may refer the patient to a
publicly funded program, if one is available. 12 Programs should consult State law to
learn whether they may refuse to admit a patient who is unable to pay
and who will not consent to the necessary disclosures to his or her
insurance carrier.
Insurance carriers, particularly managed care entities, are demanding
more and more information about the patients covered by their policies
and the treatment provided to those patients. Programs need to be
sensitive about the amount and kind of information they disclose,
because the insurer may use this information to deny benefits to the
patient. For example, if, in response to a request from the insurer,
the program releases the patient's entire chart, the insurer may learn
from the intake notes that the patient's substance abuse problem
included both alcohol and illegal drugs. The insurer may then deny
benefits, arguing that since its policy does not cover treatment for
abuse of drugs other than alcohol, it will not reimburse for treatment
when abuse of both alcohol and drugs is involved. As a second example,
the insurer may learn that the patient began drinking at age 11 and deny
benefits for a "preexisting condition." Treatment notes may contain
personal information about the patient's family life that is extraneous
for insurance company review, the sole purpose of which is to determine
whether treatment should be covered and, if so, what kind.
Detoxification programs sometimes need to maintain ongoing
communication with the referral source or with other professionals
providing services to patients. The best way to proceed is to get the
patient's consent.
In wording the consent form, one should take care to permit the kinds
of communications necessary. For example, if the program will need
ongoing communication with a mental health provider, the "purpose of the
disclosure" would be "coordination of care for Mildred Moe;" "how much
and what kind of information to be disclosed" might be "treatment
status, treatment issues, progress in treatment." If the program is
treating a patient who is on probation at work and whose continued
employment is contingent on treatment, the "purpose of disclosure" might
be "to assist the patient to comply with employer's mandates" or "supply
periodic reports about treatment;" "how much and what kind of
information will be disclosed" might be "progress in treatment." The
kinds of information that would be disclosed in the two examples are
quite different. The program might well share detailed clinical
information about a patient with a mental health provider, if it would
assist in coordinating care. Disclosure to an employer, by contrast,
would generally be limited to a brief statement about the patient's
progress in treatment. Disclosure of clinical information to an
employer generally would be inappropriate.
The program should also be careful in setting the expiration date or
event on which expiration of the consent form is based. A consent form
with a mental health provider might expire when treatment ends, while a
form permitting disclosures to an employer might expire when the
patient's probationary period at work ends.
When a staff member of a detoxification program refers a patient to
another treatment program and makes an appointment for the patient, he
or she is making a disclosure covered by the Federal regulations -- a
disclosure that the patient has sought or received detoxification
services. A consent form is, therefore, required. If the
detoxification program is part of a larger program to which the patient
is being referred, a consent form may not be necessary under the Federal
rules, since there is an exception for information disclosed to staff
within the same program.
Detoxification programs, particularly those with limited medical
resources, often must transfer patients to a hospital for intensive
medical management and care. How should programs handle such transfers,
since they involve a disclosure of patient-identifying information?
Programs may deal with this issue in two ways. First, they may ask
all patients admitted to detoxification to sign a consent form
permitting disclosure to the cooperating hospital, should
hospitalization be required. Second, they may take advantage of a
provision in the Federal regulations that permits a program to make
disclosures in a "medical emergency" 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." The regulations define "medical emergency" as "a condition
which poses an immediate threat to the health of any individual and
which requires immediate medical intervention" ('2.51). If a patient's
condition requires emergency treatment, the program may use this
exception to communicate with medical personnel at a hospital. Whenever
a disclosure is made to cope with a medical emergency, the program must
document in the patient's records the name and affiliation of the
recipient of the information, the name of the individual making the
disclosure, the date and time of the disclosure, and the nature of the
emergency.
All States require that new cases of acquired immunodeficiency
syndrome be reported to public health authorities, which submit this
information to the Federal Centers for Disease Control and Prevention.
In some cases, they also use it for other purposes. Some States also
require the reporting of new cases of human immunodeficiency virus
infection. States also require reporting of certain infectious
diseases, such as tuberculosis and sexually transmitted diseases. The
public health authority often uses reports of infectious diseases to
engage in "contact tracing," that is, finding others to whom an infected
person may have spread the disease.
The types of information that must be reported and for which
diseases, who must report, and the purposes to which the information is
put vary from State to State. Therefore, program directors must examine
their State laws to discover (1) whether they or any member of their
staff is a mandated reporter, (2) when reporting is required, (3) what
information must be reported and whether it includes patient-identifying
information, and (4) what will be done with the information
reported. 13
If State law permits the use of a code rather than a patient's name,
the program may make the report without the patient's consent, since no
patient-identifying information is being revealed.
If patient-identifying information must be reported, there are a
number of ways programs can comply with State mandatory reporting laws
without violating the Federal confidentiality regulations. They include
the following:
Obtaining consent. The easiest way to comply with a
State law that mandates reporting of patient-identifying information to
a public health authority is to obtain the patient's consent. The
information reported by the program may not be redisclosed by the public
health authority unless the consent form is drafted to permit
redisclosure.
Reporting without making a patient-identifying disclosure.
If the program is part of another health care facility (e.g., a general
hospital or mental health program), it can include the patient's name in
reports if it does so under the name of the parent agency, as long as no
information is released that would link the patient with AOD abuse
treatment.
Using a Qualified Service Organization Agreement (QSOA). A
detoxification program that is required to report patients' names to a
public health department also may enter into a QSOA with a general
medical care facility or a laboratory that conducts testing or other
services for the program. The QSOA, which is explained in detail later
in this chapter, permits the detoxification program to report the names
of patients to the medical care facility or laboratory, which may then
report the information, including patient names, to the public heath
department. However, no information is provided that would link those
names with AOD abuse treatment.
Reporting under the audit and evaluation exception. One of
the exceptions to the general rule prohibiting disclosure without
patient consent permits programs, under certain conditions, to disclose
information to auditors and evaluators ('2.53). This provision is
discussed earlier in this chapter. The U.S. Department of Health and
Human Services (DHHS) has written two opinion letters that approve the
use of the audit and evaluation exception to report HIV-related
information to public health authorities. 14 Read together, these two letters
suggest that AOD programs may report patient-identifying information
even if that information will be used by the public health department to
conduct contact tracing, as long as the health department does not
disclose the name of the patient to the "contacts" it approaches. The
letters also suggest that the public health authorities could use the
information to contact the infected patient directly.
As its name implies, '2.53 is intended to permit an outside entity,
such as a peer review organization or an accounting firm, to examine or
copy a program's records in order to determine whether it is operating
in accordance with regulations. It was not intended to permit an
outside entity to gain information to perform other tasks or accomplish
other social ends. The legal validity of these two letters may,
therefore, be considered debatable.
If someone telephones a patient at a detoxification program, the
staff may not reveal that the patient is at the program unless the
program has a written consent form signed by a patient to make a
disclosure to that particular caller. Given this restriction, how
should a program handle telephone calls to patients? There are at least
four options:
The program can obtain the patient's written consent to
accept telephone calls from particular people and consult a list of
these individuals' names when the patient receives a phone call.
If the patient has not consented to receive calls from a particular
person, the staff member can put the caller on hold and ask the patient
if he or she wants to speak to the caller. If the patient wants to
accept the call, the patient, not the staff member, is making the
disclosure that he or she is at the detoxification program. If the
patient does not want to speak to the caller, the staff member must tell
the caller, "I'm sorry, but I can't tell you whether Tommy Toe is here."
At no time may the program reveal, even indirectly, that the person
being inquired after is a patient at the program.
The program can uniformly take messages for patients, telling all
callers, "I'm sorry, but I cannot tell you if Tommy is here, but if he
is I will give him this message." Again, this leaves it up to the
patient whether to make a disclosure about being in treatment.
The program can set up a "patient phone" that is answered only by
patients. Since only patients would answer the telephone and give the
phone number to others if the number were unlisted, the program would be
making no disclosures. The program should caution patients to act
discreetly and thoughtfully when handling calls for others.
Detoxification programs treating patients who are required to enter
and participate in treatment as part of a criminal justice sanction must
follow the Federal confidentiality rules. In addition, some special
rules apply when a patient is in treatment as an official condition of
probation, sentence, dismissal of charges, release from detention, or
other disposition of any criminal proceeding, and information is being
disclosed to the mandating agency.
A consent form or court order is still required before any disclosure
may be made about an offender who is mandated into assessment or
treatment. However, the rules concerning the length of time that a
consent remains valid are different, and a "criminal justice system
consent" may not be revoked before its expiration event or date.
The regulations require that the following factors be considered in
determining how long a criminal justice system consent will remain in
effect:
The anticipated duration of treatment
The type of criminal proceeding in which the offender is
involved
The need for treatment information in dealing with the
proceeding
When the final disposition will occur
Anything else the patient, program, or criminal justice agency
believes is relevant.
These rules allow programs to continue to use a traditional
expiration condition for a consent form that once was the only one
allowed, namely, "when there is a substantial change in the patient's
criminal justice system status." A substantial change in status occurs
whenever the patient moves from one phase of the criminal justice system
to the next. For example, if a patient is on probation or parole, a
change in criminal justice status would occur when the probation or
parole ended, either by successful completion or revocation. Thus, the
program could provide treatment or periodic reports to the probation or
parole officer monitoring the patient and could even testify at a
revocation hearing if it so desired, since no change in criminal justice
status would occur until after that hearing. This formula appears to
work well.
Concerning revocability of the consent (i.e., the conditions under
which the offender can take back his or her consent), the regulations
provide that the form may state that consent may not be revoked until a
specified date arrives or condition occurs. The regulations permit the
criminal justice system consent form to be irrevocable, so that a
patient who has agreed to enter treatment in lieu of prosecution or
punishment cannot later prevent the court, probation department, or
other agency from monitoring his or her progress. Although a criminal
justice system consent may be made irrevocable for a specified period of
time, its irrevocability must end no later than the final disposition of
the criminal proceeding. Thereafter, the patient may freely revoke
consent.
Several other considerations relating to criminal justice system
referrals are important. First, any information received by one of the
eligible criminal justice agencies from a treatment program may be used
by that justice agency only in connection with its official duties with
respect to that particular criminal proceeding. The information may not
be used in other proceedings, for other purposes, or with respect to
other individuals, '2.34(d). Second, whenever possible, the judge or
referring agency should require that a proper criminal justice system
consent form be signed by the patient at the time he or she is referred
to the treatment program. If this is not possible, the treatment
program should have the patient sign a criminal justice system consent
form at his or her first appointment. With a properly signed criminal
justice consent form, the detoxification program can communicate with
the referring criminal justice agency, even if the patient appears for
assessment or treatment only once. This avoids the problems that may
arise if a patient mandated into treatment does not sign a proper
consent form and leaves before the assessment or treatment has been
completed.
If a program fails to have the patient sign a criminal justice system
form and the patient fails to complete the assessment or treatment, the
program has few options when faced with a request for information from
the referring criminal justice agency. The program could attempt to
locate the patient and ask him or her to sign a consent form. The
patient is, however, unlikely to do so. It is uncertain whether a court
can issue an order to authorize the program to release information about
a referred patient who has left the program in this type of case,
because the regulations allow a court to order disclosure of treatment
information for the purpose of investigating or prosecuting a patient
for a crime only when the crime was "extremely serious." A parole or
probation violation generally will not meet that criterion.
Therefore, unless the judge, criminal justice agency, or program
obtains consent at the beginning of the assessment or treatment process,
the program may be prevented from providing any information to the
referring criminal justice agency.
If a patient referred by a criminal justice agency never applies for
or receives services from the program, that fact may be communicated to
the referring agency without patient consent, '2.13(c)(2). As soon as a
patient has made an appointment to visit the program, a signed consent
form or a court order is needed for any disclosures.
For most treatment professionals, the decision whether to report a
patient's threat to commit a crime is a troubling one. Many
professionals believe that they have an ethical, professional, or moral
obligation to prevent a crime when they are in a position to do so,
particularly if the crime is a serious one. Although these issues may
not arise often, programs may face questions about their "duty to warn"
someone of a patient's threatened suicide, a patient's threat to harm
another, or a patient's insistence on driving while impaired.
There is a developing trend in the law to require therapists who have
learned that a patient presents a "serious danger of violence to
another" to take "reasonable steps" to protect an intended victim. This
trend started with the case of Tarasoff v. Regents of the Univ. of
Cal., 17 Cal.3d 425 (1976), in which the California Supreme Court
held a psychologist liable for monetary damages because he failed to
warn a potential victim his patient threatened to, and then did, kill.
The court ruled that if a psychologist knows that a patient poses a
serious risk of violence to a particular person, the psychologist has a
duty "to warn the intended victim or others likely to apprise the victim
of the danger, to notify the police, or to take whatever other steps are
reasonably necessary under the circumstances."
While strictly speaking the Tarasoff ruling applies only in
California, courts in a number of other States have followed it in
finding therapists and others liable for damages when they failed to
warn a potential victim of threats disclosed during therapy by their
patients. Most of these cases are limited to situations where patients
threaten a specific victim; they do not generally apply where a patient
makes a threat without identifying the intended target. States that
have enacted laws on the subject have similarly limited the duty to warn
to situations in which the identity of the potential victim has been
revealed.
Faced with a potential "duty to warn" question, program staff must
answer two, or sometimes three, questions:
Is there a legal duty to warn in this particular situation
under State law?
If there is no State legal requirement to warn an intended victim or
the police, does the program believe a moral obligation to warn
exists?
The first question may be answered only by an attorney familiar with
the law in the State in which the program operates. If the answer is
"no," it is advisable to discuss the second question with a
knowledgeable lawyer as well.
If the answer to questions 1 or 2 is "yes," can the program
warn the potential victim or someone likely to be able to take action
without violating the Federal confidentiality regulations?
There is an apparent conflict between the Federal confidentiality
requirements and the duty to warn imposed by States that have adopted
the principles of the Tarasoff case. Simply put, the Federal
confidentiality law and regulations prohibit a program from making the
type of disclosure that Tarasoff and similar cases require, 15 unless it can do so by using one of
the regulation's narrow exceptions.
When a patient threatens harm to self or another, a program has four
options:
It can go to court and request a court order authorizing the
disclosure. The program must take care that the court abides by the
requirements of the Federal confidentiality regulations. 16
The program can make a disclosure that does not identify as a
patient the individual who threatens to commit the crime. This can be
accomplished either by making an anonymous report or, for a program that
is part of an entity whose sole focus is not AOD treatment, by making
the report in the larger entity's name. For example, a counselor
employed by a detoxification program that is part of a mental health
facility could telephone the police or the potential target of an
attack, identify herself as a "counselor at the Johnson City Mental
Health Clinic," and explain the risk. This would convey the vital
information without identifying the patient as an alcohol or drug
abuser. Counselors at freestanding detoxification units may not give
the name of the program.
The program can make a report to "medical personnel" if the threat
presents a "medical emergency" that poses an immediate threat to the
health of any individual and "requires immediate medical intervention"
(§2.51). For example, a program could notify a private physician
about a suicidal patient so that medical intervention can be
arranged.
The program can obtain the patient's consent. This may be unlikely,
unless the patient is suicidal.
If none of these options is practical, what should a program do? It
is, after all, confronted with conflicting moral and legal obligations.
If a program believes there is clear and imminent danger to a patient or
another person, it is probably prudent to report the danger to the
authorities or the threatened individual. This is especially true in
States that already follow the Tarasoff rule. While each case
presents different questions, it is doubtful that any prosecution (or
successful civil lawsuit) under the confidentiality regulations would be
brought against a program or counselor who warned about potential
violence when he or she believed in good faith that there was real
danger to a particular individual. On the other hand, a civil lawsuit
for failure to warn might well result if a threat were actually carried
out. In any event, the program should try to make the warning in a
manner that does not identify the individual as an AOD abuser.
As in other areas where the law is developing, programs should find a
lawyer familiar with State law who can provide advice on a case-by-case
basis. "Duty to warn" issues also present an area in which staff
training, as well as a staff review process, may be helpful.
Suppose that an intoxicated patient arrives at a detoxification
program but decides not to enter treatment. If the patient is not in
condition to drive home, what should the program do? First, it can
offer the patient a ride home or taxi fare for a ride home. Second, it
can maintain a room where such a person can "sleep it off." (The program
would be wise to obtain the person's consent to alert his or her
family.) This strategy can also be used by detoxification programs that
do not admit patients who are inebriated.
What if the patient refuses both offers and leaves the premises,
intending to drive home? Does the program have a duty to call the
police to prevent an accident? Does it risk a lawsuit if it fails to do
so? This is a question of State law.
In most States, it is unlikely that the program would be liable,
particularly if it had made an effort to stop the patient from driving.
As noted above, in States that follow the Tarasoff doctrine,
liability has generally been limited to those situations where a patient
threatens to harm a specific person. Liability has generally not been
imposed in situations where a patient poses a threat to the community in
general.
Liability concerns aside, the program may nonetheless believe it is
obligated to call the police if its attempts to prevent the patient from
driving fail. In doing so, it must take care not to violate the
patient's confidentiality. For example, the program can call the police
and tell them that the driver of a 1991 tan Nissan with a license number
"XYZ 123," who is heading downtown from the intersection of Maple and
Third streets, is not in a condition to operate a vehicle. The program
should ask the police to respond immediately. The program may not tell
the police that the patient has a substance abuse problem. This means
it may not tell the police that the patient is impaired by alcohol or
drugs and cannot reveal the program's name, since to do so would tell
the police that the patient has a substance abuse problem.
In order to get the patient's license number and a description of his
or her car, it may be necessary to detain the patient. If it does so,
the program should avoid using force, since the patient could sue the
program for battery or false imprisonment.
Programs sometimes unknowingly admit patients who are sought by the
police. If the police discover that someone they are seeking is at the
program and come armed with an arrest warrant, what should the program
do? How should programs handle search warrants? The answers to these
questions are quite different.
An arrest warrant gives police the authority to search the program
facilities; however, the program is not authorized to help the police by
pointing out the offender. 17The
unfortunate result is that the confidentiality of all patients in the
program may be compromised when the police enter and search for a
fugitive. There is no solution to this problem, unless the police
secure a court order under '2.66, which would authorize the program to
disclose the identity of the patient. If the program cannot convince
the police to obtain a court order, it can try to convince the patient
to surrender voluntarily. (Voluntary surrender by a patient is a
disclosure by the patient, not the program.) It is usually in the
patient's best interest to surrender voluntarily, since arrest is
probably inevitable and cooperation may positively influence the
prosecutor and judge when the question of bail arises. The risk is that
the patient will attempt to escape, which might expose the program to a
charge of assisting unlawful escape. To reduce this possibility, the
program should work with the police so that law enforcement personnel
have secured the area around the program.
A search warrant does not authorize the program to permit the police
to enter the premises. Even if signed by a judge, a search warrant is
not the kind of "court order" that the Federal regulations require
before the program can allow anyone to enter and see patients or patient
records when patients have not consented. Law enforcement officials are
unlikely to know about the restrictions of the Federal regulations,
however, and they will probably believe that a search warrant permits
them to enter and search the program. What should a program do?
Presented with a search warrant, program staff should show the
officer a copy of the Federal regulations and explain their
restrictions. Staff can suggest that the officer obtain a court order
that will authorize the program to make the disclosure called for in the
search warrant. No harm will ordinarily be caused by resultant delay
(although the police may not agree with this view). The program should
call its lawyer and let him or her talk with the police. Failing that,
a program could try to call the prosecutor who has sent the police,
explain the regulations, and point out that any evidence seized without
the proper court order may be excluded at trial, since it will have been
seized illegally.
If none of these steps works, the program must permit the police to
enter. Refusal to obey a direct order of the police may be a crime,
even if the police are wrong, and forcible resistance would be unwise.
If the program has made a good faith effort to convince the law
enforcement authorities to pursue the proper route, it is unlikely that
it would be held liable for allowing entry when argument fails.
Programs should develop protocols for dealing with arrest and search
warrants and have a copy of the Federal regulations available at all
times to show law enforcement officials. Programs should establish a
relationship with an attorney who can be called upon to help in these
situations. Finally, programs should reach out to law enforcement
agencies before a crisis arises and work with them to develop ways of
dealing with these issues. If the regulations are explained when there
is no emergency and there can be no suspicion that the program is hiding
anyone or anything, and a protocol is established, unpleasant
confrontations may be avoided.
What should a program do when, for example, a patient tells a
counselor that she intends to get her children some new clothes by
shoplifting -- a crime the counselor knows she has committed many times in
the past? Does the program have a duty to tell the police? Does a
program have a responsibility to call the police when a patient
discloses to a counselor that he or she participated in a serious crime
some time in the past? What can a program do when a patient commits a
crime at the program or against an employee of the program? Each of
these questions requires separate analysis.
A program generally does not have a duty to warn another person or
the police about a patient's intended actions, unless the patient
presents a serious danger of violence to an identifiable individual. In
the example above, shoplifting rarely involves violence, and it is
unlikely that the counselor will know which stores are to be victimized.
Petty crimes like shoplifting are important issues, but they should be
dealt with therapeutically. They are not something a program should
necessarily report to the police.
Suppose that a patient admits during a counseling session that he
killed someone during a robbery 3 months ago. Does the program have a
responsibility to report that?
In a situation where a program thinks it might have to report a past
crime, three questions must be answered:
Is there a legal duty under State law to report the past
criminal activity to the police? The answer to this question is
generally no. In most States, there is no duty to report to the police
a crime committed in the past. Even those States that continue to make
failure to report a crime rarely prosecute violators of the law.
Does State law permit a counselor to report the crime to law
enforcement authorities if he or she wants to? Whether or not there
is a legal obligation to report past crimes to the police, State law may
protect conversations between counselors of detoxification programs and
their patients and may exempt counselors from any requirement to report
past criminal activity by patients. Such laws are designed to protect
the special counselor-patient relationship. State laws vary widely on
the protection they accord communications between patients and
counselors. In some States, admissions of past crimes may be considered
privileged, and counselors may be prohibited from reporting them; in
others, admissions may not be privileged. Moreover, each State uniquely
defines the kinds of relationships protected. Whether a communication
about past criminal activity is privileged (and therefore cannot be
reported) may depend on the counselor's profession and whether he or she
is State-licensed or certified. Any program that is concerned about
this issue should ask a local attorney for an opinion letter about
whether there is a duty to report and whether any counselor-patient
privilege exempts counselors from that duty.
If State law requires a report, or if it permits one and the
program decides to make a report, how can the program comply with the
Federal confidentiality regulations and State law? Any program that
decides to make a report to law enforcement authorities about a
patient's prior criminal activity must do so without violating either
the Federal confidentiality regulations or State laws. It may comply
with the Federal regulations by following one of the first three methods
described in the discussion of duty to warn, namely:
It can make a report in a way that does not
identify the individual as a patient in a detoxification program
If the crime is sufficiently serious, it can obtain a court order
permitting it to make a report
If the patient is an offender who has been mandated into treatment
by a criminal justice agency, the program can make a report to that
agency, provided it has a criminal justice system consent form signed by
the patient that is worded broadly enough to allow disclosure of this
sort of information.
Because of the complicated nature of this issue, any program
considering reporting a patient's admission of criminal activity should
seek the advice of a lawyer familiar with local law as well as the
Federal regulations.
When a patient has committed or threatens to commit a crime on
program premises or against program personnel, the regulations are more
straightforward. They permit the program to report the crime to a law
enforcement agency or to seek its assistance. Without any special
authorization, the program can disclose the circumstances of the
incident, including the suspect's name, address, last known whereabouts,
and status as a patient at the program, §2.12(c)(5).
All 50 States have statutes requiring reporting when there is
reasonable cause to believe or suspect child abuse or neglect. While
many State statutes are similar, each has different rules about what
kinds of conditions must be reported, who must report and when, and how
reports must be made.
Most States now require not only physicians but also educators and
social service workers to report child abuse. Most States require an
immediate oral report, and many have toll-free numbers to facilitate
reporting. Half of the States require both oral and written reports.
All States extend immunity from prosecution to persons reporting child
abuse and neglect. Most States provide for penalties for failure to
report.
Because of the variations in State laws, programs should consult
these documents to ensure that their reporting practices are in
compliance. Since many State statutes require that staff report
instances of abuse to administrators, who are then required to make an
official report, programs concerned about this issue should establish
reporting protocols under which staff may bring incidents of suspected
child abuse to the attention of program administrators, who must then
shoulder the responsibility to make the mandated reports.
The Federal confidentiality regulations permit programs to comply
with State laws that require the reporting of child abuse and neglect.
This exception to the general rule prohibiting disclosure of any
information about a patient, however, applies only to initial reports of
child abuse or neglect. Unless the patient consents or the appropriate
court issues a special court order, programs may not respond to followup
requests for information, or even to subpoenas, even if the records are
sought for use in civil or criminal proceedings resulting from the
program's initial report.
Research about and evaluation of the efficacy of different methods of
detoxification are essential if advances in treatment are to be made.
But can detoxification programs share patient-identifying information
with researchers and program evaluators? The confidentiality
regulations do permit programs to disclose patient-identifying
information to researchers, auditors, and evaluators without patient
consent, providing certain safeguards are met (§§2.52, 2.53).
Detoxification programs may disclose patient-identifying information
to persons conducting "scientific research" if the program director
determines that the researcher (1) is qualified to conduct the research,
(2) has a protocol under which patient-identifying information will be
kept in accordance with the regulations' security provisions (see
§2.16, as described below), and (3) has provided a written
statement from a group of three or more independent individuals who have
reviewed the protocol and determined that it protects patients' rights.
Researchers are prohibited from identifying an individual patient in any
report or from otherwise disclosing any patient identities, except back
to the program. 18
Federal, State, and local government agencies that fund or are
authorized to regulate a program, private entities that fund or provide
third-party payments to a program, and peer review entities performing a
utilization or quality control review may review patient records on the
program premises in order to conduct an audit or evaluation. 19 Any person or entity that reviews
patient records to perform an audit or conduct an evaluation must agree
in writing that it will use the information only to carry out the audit
or evaluation and that it will redisclose patient information only (1)
back to the program, (2) in accordance with a court order to investigate
or prosecute the program (§2.66), or (3) to a Government agency
overseeing a Medicare or Medicaid audit or evaluation, §2.53(a),
(c), (d). Any other person or entity that is determined by the program
director to be qualified to conduct an audit or evaluation and that
agrees in writing to abide by the restrictions on redisclosure also may
review patient records.
Research that follows patients for any period of time after they
leave treatment presents a special challenge under the Federal
regulations. The detoxification program, researcher, or evaluator who
seeks to contact former patients to gain information about how they are
faring after leaving treatment must do so without disclosing to others
any information about their connection to the detoxification program.
If followup contact is attempted by telephone, the caller must make sure
he or she is talking to the patient before identifying himself or
herself or mentioning a connection to the detoxification program. For
example, asking for "Willy Woe," when his wife or child has answered the
phone, and announcing that one is calling from the "ABC Detoxification
Program" (or the "Drug Research Corporation") violates the regulations.
The program or research agency may form another entity, without a hint
of detoxification (or drugs or alcohol) in its name (e.g., Health
Research, Inc.) that can contact former patients without worrying about
disclosing information simply by giving its name. When a representative
of such an entity calls former patients, however, care must be taken
that the patient is actually on the line before revealing any connection
with the detoxification program.
If followup is done by mail, the return address should not disclose
any information that could lead someone seeing the envelope to conclude
that the addressee had been in treatment.
Reference has been made to other exceptions the Federal
confidentiality rules make to the general rule prohibiting disclosure.
Presented below are five additional categories of exceptions to the
general rule.
The Federal regulations permit programs to disclose information about
a patient if the program reveals no patient-identifying information.
Thus, a program may disclose information about a patient if that
information does not identify the patient as an AOD abuser or does not
verify anyone else's identification of the patient as an AOD abuser.
A program may make a disclosure that does not identify a patient in
two ways. First, it may report aggregate data that give an overview of
the patients served in the program or some portion of its population.
For example, a program could tell the newspaper that in the last 6
months it had 43 patients, 10 female and 33 male. Second, a program may
communicate information about a patient in a way that does not reveal
the patient's status as a drug or alcohol abuse patient,
§2.12(a)(i). For example, a program that provides services to
patients with other problems or illnesses as well as alcohol or drug
addiction may disclose information about a particular patient as long as
the fact that the patient has a substance abuse problem is not revealed.
To cite a more specific example, a counselor from a program that is part
of a general hospital could call the police about a threat a patient
made, as long as he or she does not disclose that the patient has an
alcohol or drug abuse problem or is a patient of the detoxification
program.
Programs that provide only alcohol or drug services or that provide a
full range of services but are identified by the general public as drug
or alcohol programs cannot disclose information that identifies a
patient under this exception, since letting someone know a counselor is
calling from the "XYZ Detoxification Program" will automatically
identify the patient as someone who got services from the program.
However, a freestanding program may sometimes make "anonymous"
disclosures, that is, disclosures that do not mention the name of the
program or otherwise reveal the patient's status as an alcohol or drug
abuser.
A State or Federal court may issue an authorizing order that will
permit a program to make a disclosure about a patient that would
otherwise be forbidden. A court may issue one of these orders, however,
only after it follows certain special procedures and makes particular
determinations required by the regulations. A subpoena, search warrant,
or arrest warrant, even when signed by a judge, is not sufficient,
standing alone, to require, or even to permit, a program to disclose
information 20 (§2.61).
Before a court can issue an authorizing order, the program and any
patient whose records are sought must be given notice of the application
for the order and some opportunity to make an oral or a written
statement to the court. 21
Generally, the application and any court order must use fictitious names
for any known patient. All court proceedings in connection with the
application must remain confidential, unless the patient requests
otherwise, §_2.64(a), (b), 2.65, 2.66.
Before issuing an authorizing order, the court must find that there
is "good cause" for the disclosure. A court may find "good cause" only
if it determines that the public interest and the need for disclosure
outweigh any adverse effect that the disclosure will have on the
patient, the doctor-patient or counselor-patient relationship, and the
effectiveness of the program's treatment services. Before it may issue
an order, the court also must find that other ways of obtaining the
information are unavailable or would be ineffective, §2.64(d). 22 The judge may examine the records
before making a decision, §2.64(c).
There are also limits on the scope of disclosure that a court may
authorize, even when it finds good cause. The disclosure must be
limited to information essential to fulfill the purpose of the order and
restricted to those persons who need the information for that purpose.
The court also should take any other steps that are necessary to protect
the patient's confidentiality, including sealing court records from
public scrutiny, §2.64(e).
The court may order disclosure of "confidential communications" by a
patient to the program only if the disclosure is necessary to protect
against a threat to life or of serious bodily injury or to investigate
or prosecute an extremely serious crime (including child abuse), or is
in connection with a proceeding at which the patient has already
presented evidence concerning confidential communications
(§2.63).
A program may make disclosures to public or private 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." The regulations define "medical emergency" as a
situation that poses an immediate threat to health and requires
immediate medical intervention (§2.51).
The medical emergency exception permits disclosure only to medical
personnel. It cannot be used as the basis for a disclosure to the
police or other nonmedical personnel, including parents. Under this
exception, however, a program could notify a private physician about a
suicidal patient so that medical intervention could be arranged. The
physician, in turn, could notify a patient's parents or other relatives,
as long as no mention were made of the patient's AOD problem. Whenever
a disclosure is made to cope with a medical emergency, the program must
document in the patient's records the name and affiliation of the
recipient of the information, the name of the individual making the
disclosure, the date and time of the disclosure, and the nature of the
emergency.
If a program routinely needs to share certain information with an
outside agency that provides services to the program, it can enter into
a QSOA. A QSOA (Exhibit E-4) is a written
agreement between a program and a person providing services to the
program, in which that person (1) acknowledges that in receiving,
storing, processing or otherwise dealing with any patient records from
the program, he or she is fully bound by [the Federal confidentiality]
regulations; and (2) promises that, if necessary, he or she will resist
in judicial proceedings any efforts to obtain access to patient records
except as permitted by these regulations, §§2.11, 2.12(c)(4).
A QSOA should be used only when an agency or official outside of the
program, for example, a clinical laboratory or data-processing agency,
is providing a service to the program itself. An example is when
laboratory analysis or data processing is performed for the program by
an outside agency. A QSOA is not a substitute for individual consent in
other situations. Disclosures under a QSOA must be limited to
information that is needed by others so that the program can function
effectively. QSOAs may not be used between programs providing alcohol
and drug services
The Federal regulations permit some information to be disclosed to
individuals within the same 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 that program, §2.12(c)(3).
In other words, staff (including full- or part-time employees and
unpaid volunteers) who have access to patient records because they work
for or administratively direct the program may consult among themselves
or otherwise share information if their substance abuse work so
requires.
Does this exception allow a detoxification program that is part of a
larger entity, such as a hospital, to share confidential information
with others that are not part of the detoxification unit? The answer to
this question is quite complicated. In brief, there are circumstances
under which the detoxification unit may share information with other
units that are part of the greater entity to which it belongs. Before
such an internal communication system is set up within a large
institution, however, it is essential that an expert in the area be
consulted.
The Federal confidentiality regulations require programs to notify
patients of their right to confidentiality and to give them a written
summary of the regulations' requirements. The notice and summary should
be handed to patients when they enter the program or shortly thereafter,
§2.22(a). The regulations contain a sample notice that may be used
for this purpose.
Unless State law grants the right of patient access to records,
programs have the right to decide when to permit patients to view or
obtain copies of their records. The Federal regulations do not require
programs to obtain written consent from patients before permitting them
to see their own records.
The Federal regulations require programs to keep written records in a
secure room, locked file cabinet, safe, or other similar container. The
program should establish written procedures that regulate access to and
use of patient records. The program director or a single staff person
should be designated to process inquiries and requests for information
(§2.16).
Administrators and staff members of AOD detoxification programs
should become thoroughly familiar with the many legal issues affecting
their work. Such knowledge can prevent costly mistakes. Because legal
requirements often vary by State and change over time, it is also
essential that programs find a reliable source to whom they may turn for
up-to-date information, advice, and training.
1. This appendix was written for the
panel by Margaret K. Brooks, Esq.
2. For a discussion of AOD abuse
treatment of adolescents and informed consent, see Dubler, N.N. Legal
and ethical issues in the treatment of substance-abusing adolescents.
In: Guidelines for the Treatment of Alcohol- and Other Drug-Abusing
Adolescents. Rockville, Maryland: Center for Substance Abuse
Treatment, 1993: 47-57. Treatment Improvement Protocol (TIP) Series
Number 4.
3. Citations throughout this chapter
in the form "§2..." refer to specific sections of 42 Code of
Federal Regulations (C.F.R.), Part 2, Implementing the Substance
Abuse and Mental Health Services Administration (42 U.S.C.
§290dd-2) (1987).
4. For a discussion of procedures that
programs may use to collect patient fees, see Confidentiality: A
Guide to the Federal Laws and Regulations. New York: The Legal
Action Center, 1991.
5. In Simmons v. City of Philadelphia,
947 F.2d 1042 (3d Cir. 1991), the mother of a man who was intoxicated
when arrested and committed suicide while incarcerated successfully sued
the City for failing to maintain a protocol to deal with emotionally
disturbed intoxicated inmates, who comprised the majority of persons
committing suicide while in prison.
6. The DEA regulations permit "any
person in possession of any controlled substance and desiring or
required to dispose of such substance [to] request the Special Agent in
Charge of the Administration in the area in which the person is located
for authority and instructions to dispose of such substance," 21 C.F.R.
§1307.21(a). The regulation sets forth how such a request should
be made. Subsection 1307.21(d) specifically states that the regulation
"shall not be construed as affecting or altering in any way the disposal
of controlled substances through procedures provided in laws and
regulations adopted by any State."
7. Only patients who have "applied for
or received" services from a program are protected. If a patient has
not personally sought help from the program or has not yet been
evaluated or counseled by a program, the program is free to discuss the
patient's drug or alcohol problems with others. The Federal regulations
govern from the moment the patient applies for services or the program
first conducts an evaluation or begins counseling.
8. Search and arrest warrants are
discussed below. For an explanation about how to deal with subpoenas,
see Confidentiality: A Guide to the Federal Law and Regulations.
New York: The Legal Action Center, 1995.
9. No information that is obtained
from a program (even if the patient consents) may, however, 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-2; 42 C.F.R. §2.12[a],[d]).
10. Although Federal and, in some
cases, State laws may prohibit the employer from firing employees or
taking other action simply because they have entered treatment,
discriminatory practices against recovering people continue.
11. Some States prohibit insurance
companies from discriminating against individuals who have received
substance abuse treatment; however, discriminatory practices continue.
Insurance companies routinely share information about policy holders.
Although the Federal regulations prohibit insurance companies from
sharing information from a treatment program with other carriers, that
prohibition is no guarantee that such redisclosure will not take
place.
12. If a patient who has signed a
consent form permitting the program to make disclosures to a third-party
payer later revokes his or her consent, the program can bill the
third-party payer for services provided before consent was revoked. A
program cannot, however, make any disclosures to the third-party payer
in order to receive reimbursement for services rendered after the
patient revoked consent, §2.31(a)(8).
13. If the State's reporting law is
intended only to gather information for research purposes,
detoxification programs can include patients' names in their reports, if
the public health department complies with §2.52 of the Federal
regulations. That section permits release of patient-identifying
information to researchers when (1) they are qualified to conduct the
research, (2) they have a research protocol to protect
patient-identifying information, and a group of three or more
individuals independent of the research project have reviewed the
protocol and found it adequate, and (3) they agree not to redisclose
patients' names or identifying information except back to the program
and not to identify any patient in a report. In most cases, a
department of public health will easily satisfy the first requirement.
The Federal Department of Health and Human Services has suggested in
opinion letters that the second requirement may not apply when the
research is intended to track the incidence and causation of diseases.
Thus, if the State is gathering information only for research purposes,
the program can probably make reports including patients' names, if the
department agrees not to redisclose patients' names or identifying
information except back to the program and not to identify any patient
in a report.
14. See Letter to Oklahoma State
Department of Health from the Legal Adviser to the U.S. Alcohol, Drug
Abuse, and Mental Health Administration, dated September 2, 1988, and
Letter to the New York State Department of Health from the Acting
General Counsel to the U.S. DHHS, dated May 17, 1989.
15. The regulations make it clear
that Federal law overrides any State law that conflicts with the
regulations (§2.20). In the only case, as of this writing, that
addresses this conflict between Federal and State law (Hasenie v.
United States, 541 F. Supp. 999 [D. Md. 1982]), the court ruled that
the Federal confidentiality law prohibited any report.
16. Federal confidentiality statutes
and regulations strictly prohibit any investigation or prosecution of a
patient based on information obtained from records unless the court
order exception is used (42 U.S.C. §§290dd-2(2)(C) and 42
C.F.R. §2.12(d)(1).
17. If the patient is being sought
because he or she has committed a crime on program premises or against
program personnel, the program can point the patient out (see section
IV.I.3).
18. Two statutes (42 U.S.C.
§241[d] and 21 U.S.C. §872[c]), both of which cover research
into drug use, permit the Secretary of DHHS and the U.S. Attorney
General, respectively, to authorize researchers to withhold the names
and identities of research subjects. The statutes both state that the
researcher "may not be compelled in any Federal, State, or local civil,
criminal, administrative, legislative, or other proceeding" to identify
the subjects of research for which such authorization was obtained.
Such authorization is commonly called a "certificate of
confidentiality." Whether or not research investigators have obtained
an authorization from the Attorney General or the Secretary of DHHS,
however, they must comply with the prohibitions on redisclosure
discussed in this section of the chapter if they have been given access
to patients' records in a federally assisted treatment program.
19. These particular entities also
may copy or remove records, but only if they agree in writing to
maintain patient-identifying information in accordance with the
regulations' security requirements (see §2.16), to destroy all
patient-identifying information when the audit or evaluation is
completed, and to redisclose patient information only (1) back to the
program, (2) in accordance with a court order to investigate or
prosecute the program (§266), or (3) to a government agency
overseeing a Medicare or Medicaid audit or evaluation,
§2.53(b).
20. For information on how to deal
with subpoenas, see Confidentiality: A Guide to the Federal Laws and
Regulations, New York: Legal Action Center, 1991.
21. If the information is being
sought to
investigate or prosecute a patient, only the program need be notified
(§2.65). If the information is sought to investigate or prosecute
the program, no prior notice is required (§2.66).
22. 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 also must
find that (1) the crime involved was 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 also must find that the program had an opportunity to
be represented by independent counsel. If the program is a government
entity, it must be represented by independent counsel,
§2.65(d).
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