I. Confidentiality of Alcohol and Drug Abuse Patient Records: The Basics

Federal law (42 U.S.C. §290dd-2) and regulations (42 CFR Part 2) afford substance abuse treatment client records special privacy protection out of recognition that the confidentiality of such records must be scrupulously protected if individuals are to be encouraged to enter and stay in treatment.

These are the basic provisions of the Federal confidentiality law and regulations:

• Except under certain specified conditions, there is a prohibition on disclosure of records or other information concerning a patient in a Federally assisted program. (See 42 CFR §2.11 for definition of “program” and §2.12(b) for the meaning of “Federally assisted.”) The prohibition applies regardless of whether the person seeking the information already has it, has other means of obtaining it, enjoys official status, has obtained a subpoena or even a warrant, or is authorized by State law (42 CFR §2.13(b)).
• Under certain conditions, limited disclosures are permitted. These fall into nine categories: (1) when there is written consent from the patient; (2) when the disclosures are for the purpose of internal communications; (3) when there is no patient-identifying information; (4) when there is a medical emergency; (5) when there is a court order; (6) when the person involved has committed a crime at program or against program personnel; (7) when the disclosure is for research/audit and evaluation; (8) when the disclosure is for child abuse and neglect reporting; and (9) when there is a Qualified Service Organization agreement (QSOA).

• Most disclosures are permissible if a patient has signed a valid consent form that has not expired or been revoked. A proper patient consent form must be in writing and contain each of the following nine elements (42 CFR §2.31):

1. the name of the program making the disclosure;
2. the name of the individual or organization that will receive the disclosure;
3. the name of the patient;
4. the purpose or need for the disclosure;
5. how much and what kind of information will be disclosed;
6. a statement that the patient may revoke the consent at any time;
7. the date, event, or condition upon which consent expires if not revoked;
8. the signature of the patient; and
9. the date on which the consent is signed.

General release forms and other forms that do not contain all the above nine elements are not valid for the purpose of authorizing disclosure of substance abuse patient records.

• Familiarity with the Federal confidentiality provisions is essential to anyone directly or indirectly involved with substance abuse treatment, because the unknowing proceed at peril of criminal and civil liability. 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 (42 CFR §2.4).

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