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Confidentiality Laws and Issues
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CONFIDENTIALITY OF SUBSTANCE ABUSE RECORDS
I.
CONFIDENTIALITY RULES
A. Any
information or records regarding a patient in a federally assisted
alcohol or drug rehabilitation program, are specifically protected.
42 CFR §2.12 and §2.13.
1. This
includes any facility certified as a provider by Medicare
2. This
includes any facility conducted by a state or local agency which
through general or special revenue sharing or other forms of
assistance, receives federal funds which could be but are not required
to be spent for substance abuse treatment
3. It
receives favorable tax treatment by the IRS
II.
DISCLOSURES WITH PATIENT CONSENT
A. Contents of release form
1. Name of person or program making disclosure.
2. Name of person to whom disclosure will be made.
3. Patient name.
4. Disclosure purpose.
5. Scope of information to be released.
6. Patient signature.
7. Date consent given.
8. Statement that consent may be revoked.
9. Consent expiration date.
Reference: 42 CFR §2.31
Note: If the regulations or statutes are different than
other applicable regulations or statutes, then all provisions must
apply.
For A Detailed
Explanation
III.
DISCLOSURES WITHOUT PATIENT CONSENT
A. Discussions
with Physicians, MDCH or Local Health Department
1. Substance abuse treatment facility information
can be shared within a facility among personnel with a "need
to know" without getting further patient consent.
Reference: 42 CFR §2.12
2. Sharing information with a provider outside of the
facility requires patient consent
B. Duty To Warn
Third Parties
1. For substance abuse information, a court order
must first be obtained to release information to a known third party.
Reference: 42 CFR
§2.63(a).
NOTE: This differs from other "duty to warn"
situations, where a prior court order is not required, such as is
required with HIV or mental health situations.
2. Disclosure must be necessary to protect against an
existing threat to life or of serious bodily injury, including child
abuse or neglect and verbal threats against third parties.
C. Reporting Crimes or Threatened Crimes
1. Information can be released to law enforcement officers
in regard to a crime occurring on the program’s premises or against
program personnel, or a threat to commit such a crime.
Reference: 42 CFR §2.12(c)(5)
2. Information that can be released includes only:
a) Patient’s name and address
b) Patient’s last known whereabouts
c) Patient’s status
d) Circumstances of the incident
D. Reports of Suspected Child Abuse or Neglect
1. Substance abuse regulations to not apply to reporting
of suspected child abuse or neglect under State Law.
Reference: 42 CFR §2.12(c)(6)
2. However, the regulations/restrictions still apply to
the actual records maintained.
IV.
COURT ORDERS AND SUBPOENAS
Court Orders and subpoenas are documents that have the
power to force you to appear as a witness, produce patient records, or
both.
A. Where substance abuse records are needed for a non-criminal
purpose
If so, the court must first make a determination that the
regulations have been satisfied:
1. Any hearing must be in judge’s chambers or with
closed courtroom.
2. The patient must be given notice of the hearing.
Note: You should not be the one giving the patient
notice. That is the job of the subpoenaing party.
3. You and patient must have a right to appear at the
hearing.
4. The judge must make findings on the record:
a) No other effective ways to get the information.
b) The public interest and need for the disclosure
outweighs the potential injury to the patient or program.
c) The written order must state:
(1) That disclosure is limited to the parts of the
record essential to fulfill the order’s objective
(2) That disclosure is limited to those persons
whose need is the basis for the order
(3) Any other measures required for protecting the
patient's interests.
Reference: 42 CFR §2.64
B. Where substance abuse records are requested for use to
criminally investigate or prosecute the patient.
1. You must first determine if the crime is "extremely
serious" or not.
The crime involved must be "extremely serious"
meaning: one which causes or directly threatens loss of life or serious
bodily injury including homicide, rape, kidnapping, armed robbery,
assault with a deadly weapon, and child abuse and neglect.
If the crime is not an "extremely serious"
one, then the records cannot be released by a subpoena or court order.
The patient’s consent is required.
2. If the crime is an "extremely serious" one, then the
procedures are basically the same as with a non-criminal matter, except:
a) The patient must have an opportunity to be
represented by an attorney.
b) The court must determine that there is a reasonable
likelihood that the records will disclose information of substantial
value in the investigation or prosecution.
Reference: 42 CFR §2.6
3. If the order and subpoena is insufficient, it
cannot be ignored.
a) Try to work out informally with subpoenaing
attorney.
(1) Explain to attorney why subpoena is insufficient.
(2) If attorney says to drop the whole thing, get
it in writing.
b) If the attorney will not correct the deficiencies,
you will need to go to court to explain why the subpoena is invalid.
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