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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. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  2. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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  4. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  5. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

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