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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.•

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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.

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  • 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. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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