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Monday, September 04, 2006

Release of Confidential Information - Confidentiality - Substance Abuse

Substance abuse is a major problem confronting this nation. The associated crime rate, broken families, and impact on the business sector have taken a toll on the “American Way of Life”. Due to the widespread impact upon society, various means of addressing the problem are utilized including punishment (prison, jail, and detention centers), rehabilitation (treatment facilities), and prevention (educational programs), as well as private hospitals and employee assistance programs. Despite acknowledgment of the problem, there is still a great deal of social cost associated with disclosure of a substance abuse problem or risk of a problem. For this reason stringent regulations have been established to ensure the individuals right to privacy.
Federal regulations protecting the confidentiality of drug and alcohol records were first issued in 1975, but due to the complexity, length, and general impracticability of the legislation, infractions are common. Added criteria associated with juveniles and potential criminal justice proceedings further complicate a misunderstood process. This can be particularly troublesome for health educators unfamiliar with the legal mandates surrounding drug education and prevention.
Statutory Authority:
In 1975, regulations were issued pursuant to two different statutes, although only one set of regulations exist. The Drug Abuse Office and Treatment Act of 1972 was amended to mandate confidentiality of patient records to be maintained in connection with the performance of any drug abuse prevention function. Similarly, the Comprehensive Alcohol Abuse and Alcohol Prevention Treatment and Rehabilitation Act of 1970 (also amended in 1974) governs records maintained in connection with the performance of any program or activity relating to alcoholism, alcohol abuse, education, training, treatment, rehabilitation, or research.
Regulatory Framework:
The Alcohol, Drug Abuse and Mental Health Administration subdivision of the Health and Human Services Public Health Service has general oversight and coordination responsibility but lacks direct enforcement ability. The National Institute of Alcohol Abuse and the National Institute of Drug Abuse more closely monitors compliance with regulations set by the HHS.
The regulations are organized into four parts: Scope of applicability, definitions, general rules regarding disclosures, and specific situations of disclosure. The regulations broadly apply to nearly every facility or program that provides drug or alcohol treatment, and extend authority to programs “directly or indirectly assisted by any department or agency of the US”. This is interpreted to mean any drug or alcohol prevention function directly assisted by government grant; regulated, licensed, or authorized by federal government; indirectly assisted by government contracts, or assisted by the Internal Revenue Service (IRS) through tax deductions or exempt status. This remains in effect even if drug and alcohol prevention/treatment is not the primary function.
General Rules:
Confidential information includes ALL information about clients in the possession of program personnel: attendance/absence records, physical whereabouts, and status as a patient...whether or not this is documented. Whereas in most hospital settings family members can call to request general information (room number, date of release, etcetera), this is strictly forbidden in regard to substance abuse. Disclosure that a person answers to a particular description, name, or has/has not attended a program, is subject to the prohibitions and conditions of the regulations. Any improper or unauthorized request for disclosure, records, or information must be met by a non-committal response.
The search for a truly non-committal response presents implicit disclosure problems. Considerable time has been spent attempting to draft a response that does not produce an implicit or negative disclosure. However, even if such a response could be drafted, determining when to use it also presents difficulties. If it is used only when a record contains drug/alcohol information, there is implicit disclosure of this fact by virtue of the response. If a non-committal response is used in reply to every request for records, the implication is equally possible that the patient MAY be receiving substance abuse services when in fact, they are not. To further complicate the issue, the identification of drug and alcohol clients through their files is also suspect...whether in a hospital setting, employee assistance program, prevention program, or criminal justice setting.
Basic rules are set forth regarding disclosure of records pertaining to minors, deceased or incompetent patients, informants, and identification cards. When disclosure is made in compliance to the regulations, it must be “limited to information necessary in the light of the need or purpose for the disclosure”: another essentially subjective statement often left to the broadest interpretation.

Disclosure with Consent:
The form of consent required is explicitly stated. Consent must be in writing and contain the following:
1. The name of the program making the disclosure.
2. The name or title of the person or organization to which disclosure is being made.
3. The name of the patient.
4. The purpose/need for disclosure.
5. The extent or nature of the information to be disclosed.
6. A statement that consent is subject to revocation at any time...except for that disclosure already provided (unless for a criminal justice release which cannot be revoked once given).
7. The date on which the consent form was signed.
8. The signature of the patient or authorized guardian.
9. The date, event, or condition upon which the consent will expire if not revoked before (This can be no longer than “reasonably necessary” to serve the given purpose).
The release must be written with the client rather than pre-typed. Disclosure is prohibited if the consent is “non-conforming” in any respect. Redisclosure of information released is prohibited. Each disclosure must be accompanied by a written statement substantially similar to:
“....This information has been disclosed to you from records whose confidentiality is protected by federal law. Federal regulation (42CFR Part 2) prohibits you from making any further disclosure without specific written consent of the person to whom it pertains, or as otherwise permitted by such regulations.”
This includes the patients family, third party payers, and criminal justice system. This is difficult when the program is housed in a criminal justice setting or pertains to a minor in any respect.
A facility may deny relatives access even with written consent if disclosure is deemed harmful in any manner. Employers who obtain written consent from clients may receive information limited to the verification of the status of treatment. In all other situations not specifically provided for, a facility or program may make disclosure in compliance to a written consent if the consent is given voluntarily/without coercion and the request for disclosure will not cause harm to the client in general.
The requirements of such subjective determinations of benefit versus harm has been criticized as unpracticle and burdensome for the program/facility as well as overly paternalistic toward the clients who should have a “right” to control information about themselves. Questions arise in response to this “right”; including criminal activities reported during the course of counseling or program activities, the rights of parents versus minor children, the rights of pregnant women versus the unborn child who is also subject to the effects of drug abuse, the right of an employer to know if an employee referred to counseling is successfully completing treatment, and numerous other legal and ethical concerns.
As a general practice, substance abuse personnel learn to ask precise questions in order to avoid the occasional admission of guilt regarding an “unsolved” crime. In cases where admission of guilt is an issue, the privilege of confidentiality protects both client and personnel. Exceptions include breach of confidentiality based on the “Tarasoff Rule” which requires personnel to warn possibly endangered third parties with whom the provider has had no previous relationship, or in the case of child abuse which must always be reported. But, what about the unborn child? Some state and local authorities require maternal drug and alcohol usage to be reported to authorities as child abuse. These reports can result in criminal charges against the mother and/or placement of the children into protective custody with the loss of parental rights. Implications for health education programs can conflict with program goals. If maternal usage of the substance is labeled child abuse then a legal obligation to report the abuse exists. However, this may lead to an undesired outcome as the mother may chose to forego not only substance abuse services but also prenatal care in order to avoid criminal charges. The client may feel the standard is haphazardly applied due to the drug of choice (drugs such as cocaine are routinely tested for and often result in prosecution whereas hallucinogenic drugs can only be tested through cerebral spinal fluids requiring a complicated and invasive spinal tap which is rarely performed ), or that disclosure of information is a punitive approach in itself.
Federal regulations require facilities to inform pregnant women about their right to confidentiality AND required reporting procedures/possible court involvement. Information concerning the woman may not be disclosed without written consent. A woman does have the right to control the release of confidential records pertaining to her infant according to the Treatment Improvement Protocol #2 of the US Department of HHS, unless excused by law. Due to the sheer number of conflicting laws dealing with the subject, the issue is far from adequately resolved. In addition to regulations cited for general disclosure information, various other federal and state laws from the Child Welfare Act of 1980 to the Americans with Disabilities Act must also be considered.
Another area of difficulty is the rights of adolescents. In most instances parents have the right to consent for their children and the right to information regarding their children, but when dealing with substance abuse the adolescent must consent to the program, treatment, and release of information regarding themselves. Parents cannot sign for the child. Consent must be in writing and assurance of free will must again be considered. Debate is unresolved in regard to adolescents who seek treatment or services without parental knowledge or consent, and/or refuse parental disclosure. As with other issues such as abortion rights, it is felt the child’s safety may be jeopardized, however, rejection my be paramount to denying medical treatment.
Disclosure Without Consent:
Exceptions to the rule that a patient must consent to disclosure do exist. These include bona fide medical emergencies, child abuse, suicidal or homicidal threats, the content necessary for qualified personnel to conduct scientific research, financial audits, program evaluations, and court orders. That is not to say there is free/open access to records. For example, in regard to a court order, a supeona alone is not sufficient grounds to comply. Proper response requires acknowledgment of the supeona and attendance to a “Good Cause” hearing which serves to document that a good cause exists for the protection of life or serious bodily harm. This is specific to substance abuse only.
There remains a great deal of work to be done to determine exact standards for the release of information with far- reaching social consequences and legal ramifications for clients and providers of substance abuse services. Issues of pre-natal child abuse received widespread attention in recent years but little is known about long term results of the stance taken. Employers attempting to eradicate substance abuse from the workplace implemented programs to address the issue but remain dissatisfied with the lack of knowledge available concerning progress/participation. Only for “reasonable cause” versus the factor of need, can an employer gain access to information. Meanwhile, the issue of adolescent participation is far from resolved. With high rates of teenage drug use and associated criminal activity, attention has focused on prevention programs for this group...but little consensus has been reached regarding the “how to’s” of disclosure. This is especially true if the minor denies parental disclosure or disagrees with parental consent. Finally, criteria used to determine the proper stance is subjective in nature, leading to discrepancy in the application of regulations.

Confidentiality of Alcohol and Drug Abuse Patient Records. 42 CFR Part 2 SS2.1-2. 67-1 (1979).
Federal Register. Vol. 52 No. 110. Rules and Regulations. Release of Confidential Information 42 CFR Part 2. 1987.


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