DTCI: Protection of drug and alcohol treatment records

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dtci-drenth-marianLawyers representing plaintiffs and defendants in civil tort actions will eventually be challenged with protecting their client’s alcohol and drug treatment records from disclosure. In most cases, a person’s alcohol and drug treatment records are considered confidential and non-discoverable. The Public Health Service Act, 42 U.S.C. § 290dd-2(a) (Westlaw 2011), bars access to an individual’s alcohol and drug treatment records and relieves a party to litigation from answering questions regarding such treatment.

dtci-schumann-dane Congress passed the PHSA to provide addicts an incentive to seek treatment by eliminating the threat of an adverse party’s use of their efforts to obtain treatment against them. The act’s penalties provision for violations clearly illustrates Congress’ intent to vigorously protect substance abuse treatment records. Carr v. Allegheny Health, Education and Research Foundation, 933 F. Supp. 485(W.D. Penn. 1996).

The PHSA provides that patient records pertaining to substance abuse treatment are confidential and not discoverable, subject to limited exceptions. Confidentiality applies if the records sought to be disclosed were obtained from a program “which is conducted, regulated, or directly or indirectly assisted by any department or agency of the United States.” 42 U.S.C. § 290dd-2(a) (Westlaw 2011).

The PHSA’s regulations dictate that this privilege extends to any information about alcohol and drug abuse that patients obtained by a “federally assisted” program. Coverage includes, but is not limited to, those treatment or rehabilitation programs, employee assistance programs, programs within general hospitals, school-based programs, and private practitioners who hold themselves out as providing – and do provide – alcohol or drug abuse diagnosis, treatment or referral for treatment. However, these regulations do not apply, for example, to emergency room personnel referring a patient to the intensive care unit for an apparent overdose. The privilege still applies if the provider is making the referral to obtain a substance abuse diagnosis, treatment or referral and they are identified as providing such services.

Substance abuse treatment records are presumed confidential. Therefore, the bar to overcome this presumption is high. Mosier v. American Home Patient, 170 F. Supp. 2d 1211, 1214-15 (N.D. Fla. 2001). In Mosier, a federal court held that there was no good cause where a defendant-employer requested production of a former employee’s treatment records to defend against a wrongful termination suit, despite the court’s acknowledgment that the records were highly relevant and important to the employer’s defense. The defendant-employer presented testimony from a supervisor that he suspected the employee was drunk at work because the employee appeared disheveled, smelled like alcohol, exhibited strange behavior, turned in work late, and the employee was impaired at the end of his tenure. The court found that this evidence was insufficient to support a finding of good cause to release the employee’s prior alcohol treatment records for treatment that was received approximately six years before his employment. Mosier, 170 F. Supp. 2d. at 1214.

What is required to obtain disclosure of alcohol and drug treatment records? 42 C.F.R. § 2.64 delineates the process for disclosure of patient records, requiring that the person seeking disclosure has a legally recognized interest in the records. A subpoena alone is insufficient. A court order is necessary. Further, disclosure may be ordered under 42 C.F.R. § 2.64 only if the court determines that good cause exists. To make this determination, the court must find that (1) other ways of obtaining the information are unavailable or would be ineffective and (2) the public interest and need for the disclosure outweigh the potential injury to the patient, the physician-patient relationship and the treatment services.

If a court orders disclosure of a litigant’s treatment records, restrictions will apply on that disclosure pursuant to 42 C.F.R. § 2.12. Upon granting such an order, the court must determine which portions of the records are necessary to fulfill the objective of the disclosure. In addition, the court must impose appropriate safeguards against unauthorized disclosure, limiting the disclosure to only those persons whose need for the information formed the basis for the order.

This is a brief synopsis of the PHSA, which is an extensive act. Attorneys should familiarize themselves with the sections of the PHSA when faced with discovery seeking the disclosure of an individual’s alcohol and drug treatment records in order to properly enforce the privileges provided by the act.•


Marian Drenth is a partner at O’Neill McFadden & Willett in Dyer, Ind., and sits on the DTCI board of directors. She concentrates her practice in civil litigation with an emphasis in health care litigation. Her practice also includes employment law and general liability. Dane Schumann is an associate at O’Neill McFadden & Willett. He focuses his practice on health care and general liability. The opinions expressed in this article are those of the authors.


  • wrongful disclosure happens often
    I am a long time supporter of the rights of recovering people. I read a letter to the editor in a newspaper, the letter was written by the current judge . It was a letter about his campaign for reelection.He chose to write abou a recent case and his sentencing the defendant ( state vt Man's surname) There had been some ba cklash by his opponent and the smal l town gossip, because thean hadt a long history of substance related crime. The judge wrote in this public letter that he sentenced this man to a n iinpatientsubstance abuse treatment center to help a felon break the cycle of his addiction. He wrote that tjean was doing well in his treatment. This is a small town, and although he identified the manby last name only, the judge knew he identified this man . I was shocled that an Indiana judge would do this. This man is new to recovery, trying to, literally , save his life. This disclosure was made to gain votes. I was also shocked that a newspaper would print this in a paper. Short of the judge riding a horse through town with a bullhorn, I do not know how he could have made a bigger disclosure What can be done in a situation such as this. Is the judge or the newspaper responsible?

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  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.