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Chapter 2 of TAP 13: Confidentiality of Patient Records for Alcohol and Other Drug Treatment

Chapter 2—Confidentiality of Alcohol and Other Drug Treatment Records and Communicable Disease: Options for Successful Communication and Collaboration

In an effort to prevent, treat, and control the spread of communicable diseases, all States require health care providers and sometimes others to report cases of communicable disease to local public health authorities. These reports enable public health officials to locate, examine, counsel, treat, and monitor anyone presenting with a communicable disease. These mandated reporting requirements may appear to conflict with the Federal confidentiality regulations for drug and alcohol records, which, as discussed in Chapter 1, restrict patient-identifying disclosures about individuals in alcohol or drug treatment. Yet the Federal confidentiality regulations contain exceptions that allow substance abuse programs to discharge their State-mandated responsibilities with respect to the reporting of communicable diseases. In fact, the exceptions to the regulations not only permit programs to make the necessary communicable disease reports but also make it possible for them to cooperate on an ongoing basis with public health officials (and other health care providers) in efforts to treat and monitor those alcohol and other drug (AOD) patients who present with communicable disease.

Public Health Activities With Respect to Communicable Disease

For AOD programs to decide which exception or exceptions should be invoked (or are most apt) for purposes of meeting their State-mandated disease reporting and followup responsibilities, they need to understand what it is that public health officials (and other health care providers) may want or need to do in response to a communicable disease case report. At the least, public health officials want or need to—

• Identify an actual or suspected case of communicable disease
• Verify the case by examination
• Counsel the infected patient with an eye toward preventing further transmission
• Prescribe appropriate treatment
• Locate contacts or trace partners for purposes of identifying other cases and preventing further transmission
• Monitor treatment for efficacy and compliance
• Identify the nonadherent or noncooperative patient for purposes of invoking either civil or criminal sanctions

An appreciation of these activities will enable programs to ascertain exactly what information is needed for which public health purpose or activity and which of the available exceptions to the confidentiality regulations best fits the situation.¹

How Programs Can Comply With Communicable Disease Reporting Requirements

Reporting With Patient Consent

The easiest way for an AOD program to comply with State-mandated communicable disease reporting and followup requirements is for the program to secure the patient's consent to both the mandated report and followup activities. Such a consent can be put in place at intake or screening, with periodic renewals as necessary. Depending on State law, the consent can be made to last for as long as the patient is in the program.²

Given a proper consent, a program may report nearly anything the patient authorizes it to report, including the patient's state of health and whereabouts. The ability to report the patient's whereabouts (something that is almost always problematic for patients in residential treatment, since, by definition, a disclosure of a residential treatment patient's address is patient identifying) is especially important in the case of patients who must be examined without delay, for example, pa-tients with suspected tuberculosis (TB). Easy location of the patient also facilitates followup activities, including counseling and education, interviewing for the purpose of identifying contacts and partners, treatment, and monitoring for compliance.

Moreover, a consent, unlike some other exceptions, can allow for the redisclosure of patient-identifying information. This is particularly important where different public health officials need to communicate with one another or other health care providers for purposes of tracking and controlling disease. Indeed, the only drawbacks to the consent option, at least from the point of view of public health (and leaving aside the question of having to explain a consent to a patient, which some programs find troublesome, depending on the populations they serve), are that a consent may be withdrawn at will by the patient and that a consent may not be the basis for imposing criminal sanctions on a noncompliant patient or a patient who engages in risky behavior. Only a court order may authorize the imposition of such sanctions against a noncompliant or risk-taking patient.

Reporting "Anonymously"

A program could conceivably discharge its State-mandated disease reporting obligations by making anonymous or non-patient-identifying disclosures. Under this exception, a program is allowed, for example, to disclose a patient's name and state of health and even his or her whereabouts as long as in doing so it does not also disclose that the patient is in substance abuse treatment. Notwithstanding its apparent attractions, there are problems with a program's electing to rely on this exception to discharge its disease reporting or followup obligations. The most obvious of these has to do with the fact that most States require reporters to identify themselves. Obviously, a freestanding or residential treatment program would not be able to comply with an identification requirement without giving itself and the patient away. (A program that is part of a larger organization, such as a hospital, can simply report under the larger organization's name, assuming, of course, that the larger organization is not itself an identifiable substance abuse treatment provider.) A second problem arises where the recipient of the disclosure—here, a public health agency—wishes to establish ongoing communication with the program for the purpose of identifying and locating individuals who may have come in contact with, say, an AOD patient who is suspected of having TB. Under the circumstances, a program would not be able to cooperate with public health officials in locating, examining, counseling, educating, treating, or monitoring such contacts, since, in all likelihood, such cooperation would result in impermissible disclosures.³

Reporting by Use of a Qualified Service Organization Agreement

Programs required to make communicable disease case reports to local public health officials may comply with their reporting obligations—and put in place a mechanism authorizing ongoing communications between the program and an outside agency involved in treating or monitoring a patient's care—by entering a qualified service organization agreement (QSOA) with an outside agency or individual (the qualified service organization).

Thus, a treatment program can enter a QSOA with an outside medical care provider who would agree to provide screening and treatment to the program's patients and make mandated communicable disease reports to the State or local public health authorities. Such an arrangement would enable the AOD program and the outside service organization to share information (including AOD-patient-identifying information) without first obtaining individual patient consents.⁴ However, in making mandated reports to public health officials, the outside service provider would be forbidden from disclosing any AOD-patient-identifying information, unless the redisclosure was authorized by consent or by one of the other exceptions under the regulations. Such a QSOA arrangement would permit the program to discharge its State-mandated communicable disease case reporting obligations. However, depending on the nature of the qualified service organization, this arrangement probably would not permit the program to cooperate with local public health officials in following up on a given communicable disease report.

The program could overcome this problem by entering a QSOA directly with the State or local public health officials responsible for conducting communicable disease prevention, treatment, and control activities.A QSOA between an AOD program and a public health agency would open a channel of communication between the two that would permit the former to make mandated reports and allow the latter to follow up any such reports to the degree necessary.

Because qualified service organizations may not redisclose AOD-patient-identifying information except with the patient's consent or as otherwise authorized by the AOD confidentiality rules, a question arises as to whether a program can meet all its State-mandated communicable disease reporting obligations through a QSOA where those obligations require the redisclosure of patient-identifying information throughout the public health bureaucracy involved in controlling communicable disease. In some States, the State and local public health units are separate governmental entities. In those States, an AOD program could enter a QSOA with each of the units (assuming that each agreed to provide services to the program) and could communicate AOD-patient-identifying information back and forth with each public health unit. However, the State and local units could not share such information with each other—unless the patient consented or another exception to the Federal rules authorized such disclosures. This is because the QSOA between the AOD program and each of the public health units could not authorize either of the latter to redisclose AOD-patient-identifying information to any other entity, including other public health units. And since QSOA's may only be entered into between an AOD program and an outside service organization, the respective State and local health departments or units—neither of which would qualify as an AOD program—could not enter a QSOA with each other.

Thus, if the local public health agency and the State public health agency are separate entities, a QSOA with the local public health authorities will not permit the local public health agency to redisclose AOD-patient-identifying information to the State public health agency. In that event—for example, where the qualified service organization is a private physician or other agency—the local public health office has three options: (1) delete patient-identifying information from its reports to the State, (2) get patient consent to the disclosure, or (3)contact the patient for followup and rely on the patient's self-disclosing that he or she is in substance abuse treatment. (The regulations do not prevent patients from disclosing their own treatment status. Self-disclosures are not protected information and may be redisclosed without violating the regulations.)

However, where the qualified service organization is the local public health unit and the local public health unit is part of the same governmental entity as the State public health agency—that is, where the local public health unit is a subdivision of the State public health agency—a single QSOA can solve this problem. In such cases, the QSOA can specify that the qualified service organization that is to provide services to the program consists of both the local and State public health agencies.

Reporting and Followup Under the Research Exception

Under the research exception to the regulations, a program may permit a researcher to gather data for research purposes. Presumably, the exception would allow the program to give public health agencies access to patient records for purposes of gathering data on the presence of communicable disease within the program. The exception might even allow public health agencies to engage in examination, counseling, education, contact identification, treatment, and monitoring. It would not permit public health agencies to share patient-identifying information with other health care providers or patient contacts or partners. Indeed, inasmuch as it is predicated on the idea that the researcher is conducting research (as opposed to public health followup), requires the researcher to be possessed of a research protocol, and turns on an independent panel's evaluation of the benefits of the proposed research, this exception seems to be of only limited use for purposes of public health reporting and followup. A broader interpretation would distort the language and spirit of the regulations.

Audit and Evaluation

The audit-and-evaluation exception is plainly intended to permit regulatory agencies, funders, third-party payers, and peer review organizations to keep an eye on AOD programs to make sure that such programs are doing what they are supposed to be doing: providing effective substance abuse treatment. Accordingly, information disclosed during an audit or evaluation may not be used except for purposes of the audit or evaluation, and, in any case, may not be redisclosed except to medicaid or medicare officials or to law enforcement officials investigating a program pursuant to a court order. Under the circumstances, it would be inappropriate to rely on this exception for purposes of public health reporting or followup. Nonetheless, according to an opinion letter issued by the Department of Health and Human Services, this exception may be used for purposes of public health reporting and some followup—namely, patient counseling and interviewing—in cases of human immunodeficiency virus and acquired immunodeficiency syndrome (HIV/AIDS).⁵ The Department has never opined formally as to whether the exception may also be used for purposes of reporting and following up sexually transmitted diseases, TB, or other communicable diseases.

Reporting and Followup Under the Medical-Emergency Exception

Under the medical-emergency exception, a program may make a patient-identifying disclosure to medical personnel in a medical emergency that requires immediate medical intervention. Under this rather narrow exception (which requires a case-by-case decision as to whether a threat exists or immediate medical intervention is required), a program could report a communicable disease to public health officials only if the following conditions are met:

• The presence of an infected or allegedly infected individual in the program could be said to constitute a medical emergency
• Public health officials are medical personnel

Assuming that public health officials are medical personnel (a safe enough assumption), the real question is whether the presence in a treatment program of an individual who is infected with a communicable disease can be said to constitute a medical emergency for either the individual or others. (Under the regulations, a medical emergency is a situation that requires immediate medical intervention.) The answer to the question turns on the nature of the disease itself and how it is trans-mitted. Generally, sexually transmitted diseases—such as syphilis and gonorrhea, and even hepatitis—are not considered emergencies of the sort that require immediate medical intervention;⁶ this is also the case with HIV/AIDS. These diseases, though communicable, are not emergencies because they do not pose immediate threats to life and because the threat posed by HIV/AIDS cannot be prevented or relieved by resort to immediate medical intervention. Accordingly, they may not be reported to public health officials under the medical-emergency exception to the regulations.

The situation is different with TB or suspected TB. Because TB is transmitted by casual contact, is difficult to confirm, and is potentially deadly, the presence of a suspected case of TB in a treatment program may very well constitute the sort of emergency that can be reported to public health officials under the medical-emergency exception to the regulations. For the same reasons, it may also be that a suspected or confirmed case of TB will permit a program not only to make the required report to public health officials but also to cooperate with them in their followup activities.

Court Orders

A program that is required to report communicable diseases to local public health officials may always resort to a court order to make the necessary report. This is true whether the program is seeking to report sexually transmitted diseases, HIV/AIDS, or TB. A proper court order may authorize a program both to make mandated reports and to cooperate with public health followup activities.

Nonetheless, there are serious drawbacks to the use of a court order in such a situation. In the first place, the procedure for obtaining a court order is complicated and time-consuming. Second, there is no guarantee that a court will grant the requested order, since the court must find that the information in question is not otherwise available and that the public interest outweighs the private interest at stake. Third, the benefit of a court order might be outweighed by its negative impact on client-program relations. (A program that readily resorts to court orders to meet public health reporting requirements is probably undermining itself, though this is not to deny the place of court orders in certain situations.)⁷

Options for Communicating and Collaborating in the Provision of Communicable Disease Treatment, Monitoring, and Followup:
What Is Possible?

It is up to each program to decide what is the best or most apt exception for purposes of meeting State public health reporting requirements. Perhaps in an ideal world programs and patients would both agree to put in place appropriate consents that would allow programs to comply with all their public health obligations. Yet consents are not without their drawbacks. The most important of these drawbacks is that consents can be withdrawn at will.

To be sure, a program might counter the revocation of a consent by making treatment contingent on a new consent (whether a program can do this depends on State law), but such a move—smacking as it does of coercion—would not be without costs and could damage the therapeutic relationship.

Another option would be to put in place a QSOA with the local public health agency. This would permit the program to comply with both reporting and followup obligations. Since a program is not obligated to inform a client of the existence of a QSOA, this option may also be considered to have the added advantage of making the QSOA appear to be something of a fait accompli. (This is not to suggest that a program should be casual about its patients' concerns about confidentiality; it is actually to suggest something else: that programs are under obligations that they may not avoid, that these obligations sometimes involve the rights of their patients, and that programs should be open and matter-of-fact about meeting those obligations.)

Though they have less to recommend them, the other exceptions to the regulations have their uses. Thus, a program that cannot persuade a patient to consent to a disclosure and that does not have an appropriate QSOA in place may wish to report a communicable disease anonymously. (The limits of anonymous reports are discussed in "Reporting 'Anonymously'" above.) Programs wishing to report a case of HIV could invoke the unpersuasive but useful route recommended by the Department of Health and Human Services, namely, using the audit-and-evaluation exception for that purpose. With regard to TB or suspected TB, a program can probably rely on the medical-emergency exception to make a report. Finally, a program can always seek to discharge its reporting and followup obligations by going to court.

Footnotes

¹It goes without saying that collaboration and cooperation in this important area redound to everyone's benefit. This is particularly true with respect to cases of tuberculosis, which, unlike some other communicable diseases, can be spread by casual contact.

²Some States have laws that limit the validity of releases and consents to no more than 60 or 90 days. In such States, a consent would have to be renewed at the appropriate juncture.

³Of course, there is nothing to prevent the program from urging those of its staff and clients who may have been exposed to a communicable disease to call the appropriate officials or other providers for examination and followup.

⁴AOD programs are not required to obtain patient consent prior to entering a QSOA, nor need they inform patients of the QSOA's to which they are a party. Naturally, to the extent that a patient (who, after all, proceeds with the assurance that his or her records are confidential) is surprised by a given QSOA, his or her confidence in the program or his or her therapist may be undermined. It is probably in a program's interest to inform its patients of existing or proposed QSOA's.

⁵The Legal Action Center disagrees with the Department of Health and Human Services on this matter (see letter from Margaret K. Brooks, President/Director, Legal Action Center, to Richard Riseberg, Esq., General Counsel, Office of the General Counsel, September 25, 1990, in
AppendixB).

⁶This is the opinion of the Department of Health and Human Services (see letter from Susan K. Zagame, Acting General Counsel, Health and Human Services, to Peter J. Millock, General Counsel, Department of Health, State of New York, May 17, 1989, in Appendix B).

⁷Court orders are not a panacea. They do not permit redisclosure and are not readily available for the purpose of imposing criminal sanctions on a patient.

Last Updated 11-7-02