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Chapter 11 of TAP 11: Treatment for Alcohol and Other Drug Abuse: Opportunities for Coordination

Chapter 11–Confidentiality

Addiction to alcohol and other drugs presents a serious health problem. Not only is chemical dependency itself taking a toll on the health and well­being of hundreds of thousands of citizens, but related health problems, including AIDS and HIV disease, other infectious diseases, vehicular accidents, homicides, and suicides are among the many serious consequences of substance abuse. Addiction is truly a public health crisis that is affecting the welfare of many individuals and families and is resulting in enormous costs for treatment, related health care, and criminal justice interventions.

Therefore, providing treatment to help addicted persons recover is vital. The physical and psychological properties of many mood­ altering substances are so overwhelming that, for many individuals, they clearly compete with the positive rewards attained through treatment. Thus, efforts to attract and retain patients in treatment until they can achieve stable recovery are crucial.

Coupled with this need is the reality that addicted persons tend to be devalued and subjected to discrimination in many ways in the United States. Although lung cancer that results from cigarette smoking is similar to substance abuse in that the affected individuals have voluntarily engaged in behavior that has become addictive and caused health problems, the two types of diseases are frequently viewed very differently by the public. Prejudicial feelings toward substance abusers often result in stigma and discriminatory treatment.

To promote entry into treatment and continuation through recovery, it is important to safeguard the legal rights of substance abusers. There are many legal and ethical issues surrounding the problem of chemical addiction and its treatment. In this chapter confidentiality will be the primary focus. However, a few other legal/ethical issues, especially access and equality, also will be addressed briefly.

Confidentiality of Alcohol and Drug Abuse Patients

General Provisions

The privacy of persons receiving alcohol and drug abuse prevention and treatment services is protected by federal laws. The legal citation for these laws is 42 U.S.C. §§290ddB3 and eeB3. The regulations directing the implementation of these statutes were issued in 1975 and revised in 1987. They are found in the Code of Federal Regulations: 42 C.F.R. Part 2. A copy of these regulations begins on page 129 of this chapter.

Many States also have confidentiality laws that apply to substance abuse treatment. These may afford individuals even greater privacy than the federal law. However, State laws may not be less stringent than federal laws. If they are, the federal law (or the more rigorous one) prevails. Violation of the regulations may result in fines up to $500 for a first offense and up to $5,000 for subsequent offenses.

The federal confidentiality law applies to all programs providing alcohol or drug abuse diagnosis, treatment, or referral for treatment that are federally assisted. Included are the following:

• programs receiving any type of federal funding;
• programs receiving tax exemption status through the Internal Revenue Service;
• programs authorized to conduct business by the federal government, such as those licensed to provide methadone or those certified as Medicare providers; and
• programs conducted directly by the federal government or State or local governments that receive federal funds.

The primary intent of the confidentiality law is to prevent disclosure of information–both written records and verbal information–that would identify a person as a patient receiving alcohol or drug treatment. This protection is even extended to those who have applied, but were not admitted to the program for treatment, and to former patients and deceased patients. Not only are programs prohibited from disclosing information, except under certain conditions to be discussed later, but they also are not allowed to verify information that is already known by the person making an inquiry.

Patients are entitled to notification of the federal confidentiality laws and regulations. Programs should provide a written summary of these provisions upon admission. The written summary should include:

• information about the circumstances in which disclosure can be made without the patient's consent;
• a statement that violations of the regulations may be reported as a crime;
• a warning that committing or threatening a crime on the program's premises or against program staff can result in release of information;
• notification that the program must report suspected child abuse or neglect; and
• reference to the federal law and regulations.

Programs must keep patient records in a secure room, a locked file cabinet or other similarly protected places. There should be written procedures concerning who has access to patient records. A single staff member, often the director, should be designated to handle inquiries and requests for information about patients.

Exceptions to the General Confidentiality Conditions

Under certain conditions, programs may disclose information about persons receiving or applying for substance abuse treatment. These are described in the following sections.

Patient Consent

Patients may sign a consent form allowing for the release of information. However, consent forms must contain specific information, including the following:

• program name;
• person or individual to receive the information;
• patient's name;
• purpose or need for the disclosure;
• the specific amount and kind of information to be released;
• a statement that the patient may revoke the consent at any time;
• date, event, or condition upon which the consent will expire;
• signature of the patient; and
• date upon which the consent is signed.

Only information that is necessary to accomplish the purpose stated in the form may be released. Even if a properly­signed consent form is in force, programs are allowed discretion about disclosing information, unless the form is accompanied by a subpoena or court order. It is usually necessary for patients to sign separate consent forms for each type of disclosure and for each person or organization to whom information is to be released. However, if similar information will be released to the same person/organization during the period the consent form is valid, signing a form for each release is not required. This might occur with funding sources requiring verification of treatment provided over the course of a person's enrollment in a treatment program. On the other hand, if a different type of information is requested by the same person/organization, a new consent form would be required.

Patients may revoke their consent at any time, either verbally or in writing. This does not require the program to retrieve information disclosed when the consent form was valid. If a patient revokes a consent form permitting disclosure of information to a third­ party payer, the program still may bill the payer for any services provided during the time the consent form was valid. However, after revocation of consent, the program may not release information to third­party payment sources. If services continue to be provided, the program risks not receiving reimbursement.

The expiration date of consent forms should be at a time that is reasonably necessary to achieve the purpose for which they are signed. Rather than a specific date, consent forms may expire when a certain event or condition occurs. For example, if information is released to a physician the patient will see one time, the consent form may indicate that it is valid until the patient's appointment with the doctor. On the other hand, a consent form to provide verification of enrollment in the treatment program for an employer, who has placed the person on probation pending treatment, may be in effect until the end of the probationary period.

State laws are relied upon to determine the definition of minors and whether or not the consent of a parent (or guardian or other person legally responsible for the minor) is required for them to obtain substance abuse treatment. The regulations concerning consent for release of information follow State laws: If State law requires parental consent for treatment, then consent of both the minor patient and the parent (or guardian) must be obtained to disclose information. However, regardless of the requirement for parental consent, programs must always obtain the minor's consent for disclosure. The parent's signature alone is not sufficient.

In States requiring parental approval for the treatment of minors, programs must obtain the minor's consent before contacting a parent/guardian to obtain his or her permission for treatment. However, if the program director determines that certain conditions exist, s/he may contact the parent/ guardian without the minor's consent. In such cases, all of the following conditions must be present:

• the minor is not capable of making a rational choice because of extreme youth or mental or physical impairment;
• the situation presents a threat to the life or physical well­being of the youth or another person; and
• the risk may be reduced by communicating relevant facts to the minor's parent/guardian.

If these conditions are not present, the program personnel must inform the minor of his or her right to refuse consent to communicate with a parent/guardian. However, the program cannot provide services without such communication and parental consent. If State law does not require parental permission for treatment, programs still may withhold services from minors who will not authorize a disclosure so the program can obtain financial reimbursement for treatment, as long as this does not violate a State or local law.

Similarly, for adult patients who have been adjudicated incompetent, consent for disclosure may be made by the person's guardian or authorized representative. In situations in which a person has not been adjudicated incompetent but the program director determines that his or her present medical condition interferes with the ability to understand and take effective action, the director may authorize disclosure without patient consent only to obtain payment for services from a third­party payment source.

For deceased patients, disclosure may be authorized by the executor or administrator of his/her estate, spouse, or a family member. Without such consent, programs may make limited disclosures to comply with State or federal laws concerning collection of vital statistics or to respond to inquiries into the cause of death.

Any time a program releases information about a patient, it must be accompanied by a written statement indicating that the information is protected by federal law and the recipient cannot make further disclosure unless permitted by the regulations.

At times, patients may consent to disclosure of information to employers. Often, this can be limited to verification of treatment status or a general evaluation of progress. The program should limit disclosure to only information that is related to the particular employment situation.

Persons may be required to participate in treatment as a condition of probation or parole, sentence, dismissal of charges, release from incarceration, or other criminal justice dispositions. These patients also are entitled to protection of confidentiality, but some special qualifications apply concerning the duration and revocability of consent. A sample consent form for release of information for a criminal justice system referral is shown on the next page.

Whenever a person moves from one phase of the criminal justice system to another, a substantial change in status occurs. Until such a change occurs, consent forms cannot be revoked. Criminal justice system consent forms can be irrevocable so that individuals who agree to treatment in lieu of prosecution or punishment can be monitored. However, the irrevocability of consent ends with the final disposition of the criminal proceedings. Information obtained by criminal justice agencies can be used only with respect to a particular criminal proceeding. It may be advisable for judges or criminal justice agencies to require that the individual sign the necessary consent forms before referral to a treatment program. If not, and the program is unable to obtain the individual's consent for disclosure, it may be prevented from providing information to the criminal justice agency that referred the patient to the program. Treatment programs are allowed to apprise criminal justice agencies, without obtaining patient consent, if a person referred for treatment by such agencies fails to apply for or receive services from the program.

Because of the potential for abuse of methadone, these programs must take precautions that patients are not enrolled in multiple programs. Patients can be required to sign a consent form before they enter treatment to release information to a central registry. If the registry receives information about the same person in more than one program, each program may be notified so the problem can be resolved. Such consent remains in effect as long as the patient is enrolled in the program.

With a proper consent form, programs may release information to a patient's attorney. However, the program may use discretion to limit its response. Some programs may be concerned about potential law suits, but if they refuse to disclose information, attorneys may subpoena the records.

Internal Communications

Information about a patient may be shared among staff within a program only if there is a legitimate need for them to know it. When there is a need for internal communications, information that is shared always should be specifically related to the provision of substance abuse services being delivered.

When a program is part of a larger organization, such as a general hospital, community mental health center, or school, necessary information may be disclosed to other departments, such as central billing or medical records. However, any information that is not necessary to other departments should not be disclosed.

Disclosures Without Identification of Patients

Programs may release information that does not identify an individual as a substance abuser or verify someone else's identification of a patient. Reports of aggregate data about a program's participants may be provided. Individual information may be communicated in a manner that does not disclose that the person has a substance abuse problem. For example, the program may disclose that a person is a patient in a larger organization (e.g., general hospital, community mental health center, school) without acknowledging that s/he has a substance abuse problem. Information may be disclosed anonymously without identifying either the individual's status as a substance abuse patient or the name of the program. Finally, an individual's case history may be reported anonymously, provided information about the patient and the agency are disguised sufficiently that the person's identity cannot be determined by a reader.

Medical Emergencies

In a situation that poses an immediate threat to the health of the patient or any other individual, and requires immediate medical intervention, such as a dangerous drug overdose or an attempted suicide, necessary information may be disclosed to medical personnel. Such a disclosure must be documented in the patient's records, including the name and affiliation of the person receiving the information, the name of the person making the disclosure, the date and time of the disclosure, and the nature of the emergency. Programs should ask participants in advance to indicate a person to be notified in the event of an emergency, and the patient should be asked to sign a consent form allowing the program to notify the named person if an emergency should arise. Even without patient consent, information may be disclosed to the federal Food and Drug Administration if an error has been made in packaging or manufacturing a drug used in substance abuse treatment and this may endanger the health of patients.

Court Orders

State and federal courts may issue orders authorizing programs to release information that otherwise would be unlawful. However, certain procedures are required when such court orders are issued. A subpoena, search warrant or arrest warrant alone is not sufficient to permit a program to make a disclosure. First, a program and a patient whose records are sought must be given notice that an application for the court order has been made. The program and the individual must have an opportunity to make an oral or written statement to the court about the application. If the purpose of the court order is to investigate or prosecute a patient, it is only necessary to notify the program.

Before an order is issued, there must be a finding of "good cause" for the disclosure. If the public interest and need for disclosure outweigh possible adverse effects to the individual, the doctor­patient relationship, and the program's services, the order may be issued. Information that is essential for the purpose of the court order is all that may be released. Only persons who need the information may receive it. A court order may require disclosure of confidential communications if one of the following conditions exist:

• disclosure is necessary to protect against a threat to life or of serious bodily injury;
• disclosure is required to investigate or prosecute an extremely serious crime; or
• disclosure is necessary in a proceeding in which the patient has already provided evidence about confidential communications.

Before a court order can be issued to release patient information for a criminal investigation or prosecution, five criteria must be met. These are:

1. the crime is extremely serious (e.g., threatening to cause death or serious injury);
2. the records sought will probably contain information that is significant to the investigation or prosecution of the crime;
3. there is no other feasible way to acquire the information;
4. the public interest in disclosure outweighs any harm to the patient, doctor­patient relationship, and the agency's ability to provide services; and
5. the program has an oppor­ tunity to be represented by independent counsel when law enforcement personnel seek the order.

Subpoenas may require a person to appear to give testimony or to bring documents to a hearing. Although they may be signed by a judge or other legal officials, subpoenas are not the type of court order required by the confidentiality regulations. Thus, federal confidentiality laws and regulations prohibit treatment programs from responding to subpoenas by disclosing information concerning current or former patients. However, if the person about whom the information is requested signs a proper consent form authorizing the release, the program may do so. If a court order is issued after giving the program and patient an opportunity to be heard, and after making a good cause determination, treatment programs may respond to subpoenas.

Search warrants, similarly, may not be used to allow law enforcement officers to enter the program's facilities. However, arrest warrants do permit law enforcement personnel to search for a particular patient who has committed or threatened a crime on the premises of the program or against program personnel. Unless the arrest warrant is accompanied by a court order, the program may not cooperate with a search for a patient who committed a crime elsewhere.

Crimes at the Program or Against Program Staff

A program may report, or seek assistance from law enforcement agencies, when a patient commits or threatens to commit a crime on the program's premises or against program personnel. Information that may be disclosed includes the suspect's name, address, last known whereabouts, and status as a patient in the program.

Information a patient may divulge about crimes or threats to persons away from the program present special dilemmas. In some States therapists are liable if they fail to warn someone that a patient has threatened to harm him or her. At the same time, the federal regulations, which override State laws, prohibit disclosures that identify substance abuse patients unless they are made pursuant to a court order or without identifying the patient. Such circumstances require knowledge of the applicable State and federal laws and a balancing of moral and legal obligations. If possible, the best solution may be for the program to try to make the warning in a manner that does not identify the individual as a substance abuser.

Research and Audits

Researchers may obtain patient­identifying information if certain precautions are applied. The research protocol must ensure that information will be securely stored and not redisclosed except as allowable under the federal regulations. Confidentiality safeguards must be approved by an independent body of three or more persons. Researchers are strictly prohibited from redisclosing patient information. Reports of the research must not identify a patient, directly or indirectly.

Government agencies, third­party payers and peer review organizations may need to review program records without patient consent to conduct an audit or evaluation. Those persons involved in such activities must agree in writing that they will not rediclose patient identifying information unless it is pursuant to a court order to investigate or prosecute the program (not a patient). A government agency that is overseeing a Medicare or Medicaid audit or evaluation also may receive patient information.

Child Abuse Reports

All States have laws requiring reporting of suspected child abuse and neglect. Substance abuse treatment programs must comply with these mandatory reporting laws. This applies, however, only to initial reports of abuse or neglect, and not to requests for additional information or records. Even if the initial report results in civil or criminal investigations or proceedings, patient files may not be disclosed without a proper court order or the person's consent. Reports must be made when there is a danger of harm to a child, but the mere presence of a substance abuse problem on the part of a parent is not reportable.

Qualified Service Organization Agreement

A service organization is a person or agency providing services to the program. Examples include data processing, dosage preparation, laboratory analyses, vocational counseling, accounting, and other professional services. A qualified service organization agreement (QSOA) is a written agreement, between two parties only, acknowledging that the service organization is fully bound by the confidentiality regulations when dealing with information about patients from the program. It further must promise to resist efforts to obtain access to information about patients, except as permitted by the regulations. A sample form for a qualified service organization agreement is provided on the following page.

____________________________________, and ______________________________

(treatment program)

(Court, probation, parole, and/or other referring agency)

The purpose of and need for the disclosure is to inform the criminal justice agency(ies) listed above of my attendance and progress in treatment. The extent of information to be disclosed is my diagnosis, information about my attendance or lack of attendance at treatment sessions, my cooperation with the treatment program, prognosis, and _____________________________________________________________

I understand that this consent will remain in effect and cannot be revoked by me until:

_______		there has been a formal and effective termination or revocation of my release from confinement, probation, or parole, or other proceeding under which I was mandated into treatment, or
_______		_______________________________________________________
		(other time when consent can be revoked and/or expires)

I also understand that any disclosure made is bound by Part 2 of Title 42 of the Code of Federal Regulations governing confidentiality of alcohol and drug abuse patient records and that recipients of this information may redisclose it only in connection with their official duties.

		______________________________________________________________
(Date)		(Signature of defendant/patient)
		_______________________________________________________________
		(Signature of parent, guardian or authorized representative if required)

Source: Confidentiality: A Guide to the Federal Laws and Regulations. New York: Legal Action Center, 1991.

Confidentiality and Other Diseases

Doctor­patient privilege is an accepted practice in medical treatment. In most cases, medical personnel are ethically bound not to divulge information about their patients' medical conditions. However, confidentiality requirements for most medical situations are not nearly as stringent as those that apply to substance abuse treatment programs. For example, generally, physicians are not restricted from acknowledging that an individual is a patient, as is the case with substance abuse treatment.

For substance abuse treatment programs, there are some special considerations when patients have specific diseases. The medical emergency exception to confidentiality does not apply to reporting the results of venereal disease tests to public health officials, as this does not present an immediate medical danger. Thus, these diseases are not reportable by substance abuse treatment programs (Legal Action Center, 1991).

There are some special considerations related to HIV disease, which is also a highly stigmatized illness requiring strict patient confidentiality. All States mandate that cases of AIDS be reported to public health authorities who subsequently report them to the federal Centers for Disease Control and Prevention. Some States also require that positive tests for HIV be reported. Sometimes information is used for tracing and contacting persons who might have been exposed to HIV by the patient, constituting a Aduty to warn.@ This may pose conflicting legal obligations for programs to report such information and maintain patient confidentiality. In some cases, anonymous reports can be made using codes rather than patient names. It also may be possible to get patient consent to make mandated reports. Some programs enter into qualified service organization agreements, and the necessary information is reported by a laboratory or medical care provider without identifying the individual as a recipient of substance abuse treatment. In the event that substance abuse treatment records must be released with patient consent or by a court order, programs may need to take precautions not to reveal HIV status inadvertently. Such release of information about HIV status to insurers, employers, and others could have serious ramifications for the infected individual. Ways to avoid unnecessary release of HIV information include maintaining a separate medical file which is not released, releasing the file without the HIV­related information, or having the individual sign a consent form authorizing the release of HIV­related information (Legal Action Center, 1991).

Discrimination and Access to Services

Another piece of federal legislation has special implications for substance abuse treatment. The Americans with Disabilities Act (ADA) ensures equal access to employment, goods, and services for disabled persons. The definition of individuals with disabilities includes those who are dependent on alcohol and other drugs and persons with HIV disease (O'Toole, 1992).

The ADA prohibits discrimination in employment practices and requires all employers with 15 or more employees to implement the law. Job applications, hiring, firing, advancement, compensation, training, and other aspects of employment are covered. Anyone who meets the skill, experience, education, or other requirements of a job must be considered qualified, even if reasonable accommodations are required for him or her to perform the job. Thus, a recovering substance abuser may not be asked on applications or in interviews to reveal his or her chemical dependency. However, testing for illegal drug use is allowable under the ADA. The results of drug tests can be used to make employment decisions; persons currently engaged in using illicit drugs are not protected (O'Toole, 1992).

Treatment programs may have to make modifications in facilities and activities to accommodate physically disabled individuals. This is true even if programs receive no federal funding (O'Toole, 1992).

HIV­positive individuals are protected by the ADA. It is unlawful to refuse medical and other services to HIV­infected persons. Thus, treatment programs may not exclude patients because of their HIV status. Confidentiality of HIV status is also protected under the ADA. This protection extends to spouses, family members, caretakers, and other who associate with the person, as they also have been the victims of discrimination related to HIV/AIDS. (O'Toole, 1992).

The _________________________________ Service Center ("the Center") and

(name of organization)

(name of the program)

hereby enter into a qualified service organization agreement, whereby the Center agrees to provide
____________________________________________________________________________
(nature of services to be provided)
____________________________________________________________________________

Furthermore, the Center:

1. acknowledges that in receiving, storing, processing, or otherwise dealing with any information from the Program about the patients in the Program, it is fully bound by the provisions of the federal regulations governing Confidentiality of Alcohol and Drug Abuse Patient Records, 42 CFR Part 2; and
2. undertakes to resist in judicial proceedings any effort to obtain access to information pertaining to patients otherwise than as expressly provided for in the federal confidentiality regulations, 42 CFR Part 2.

Executed this _____________ day of ___________, 199___.

_______________________________		_______________________________
President		Program Director
[name]Service Center		[Name of the Program]
[address]		[address]

Conclusion

Confidentiality is considered important for attracting alcohol­ and drug­dependent persons to treatment. Legal safeguards may be important in many other areas, as well, to protect the privacy, due process, and equal protection rights of individuals affected by addiction.

State and local decision makers may need to give thoughtful consideration to their specific responsibilities in light of these legal requirements. Legislators may need to examine State laws and regulations to determine their compliance with federal statutes. Generally, the more stringent of the two must be observed. Thus, passing State laws that require less than federal laws has no benefit. An area for special consideration for legislatures is the requirement for parental consent for minors to receive substance abuse treatment. Such laws may result in youth being unable to received needed treatment at earlier stages in their substance abuse history because they do not want their parents informed.

Judicial personnel will often be confronted with the possible consequences of issuing court orders to obtain substance abuse treatment records. If such measures might result in discouraging a person from continuing in treatment, they may be counterproductive in the long run. Working with other law enforcement personnel to understand confidentiality requirements of treatment programs also is necessary. They may perceive treatment personnel as uncooperative when they are only obeying legal requirements.

Coordination and collaboration among legislative, judicial, and treatment systems is vital to ensure the greatest likelihood of successful interventions with chemically dependent persons. In the next chapter, specific suggestions about systems coordination are provided.

References

Legal Action Center (1991). Confidentiality: A guide to the federal laws and regulations. New York: Author.

O'Toole, P. (1992, November/ December). Access and equality: The Americans with Disabilities Act. The Counselor, 29B31.

Endnote

1. Information in this section is summarized from Confidentiality: A Guide to the Federal laws and regulations (1991). New York: Legal Action Center.

Last Updated 11-7-02