Lawyers 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.

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.•

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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.