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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. Your article is a good intro the recent amendments to Fed.R.Civ.P. For a much longer - though not necessarily better -- summary, counsel might want to read THE CHIEF UMPIRE IS CHANGING THE STRIKE ZONE, which I co-authored and which was just published in the January issue of THE VERDICT (the monthly publication of the Indiana Trial Lawyers Association).

  2. Thank you, John Smith, for pointing out a needed correction. The article has been revised.

  3. The "National institute for Justice" is an agency for the Dept of Justice. That is not the law firm you are talking about in this article. The "institute for justice" is a public interest law firm. http://ij.org/ thanks for interesting article however

  4. I would like to try to find a lawyer as soon possible I've had my money stolen off of my bank card driver pressed charges and I try to get the information they need it and a Social Security board is just give me a hold up a run around for no reason and now it think it might be too late cuz its been over a year I believe and I can't get the right information they need because they keep giving me the runaroundwhat should I do about that

  5. It is wonderful that Indiana DOC is making some truly admirable and positive changes. People with serious mental illness, intellectual disability or developmental disability will benefit from these changes. It will be much better if people can get some help and resources that promote their health and growth than if they suffer alone. If people experience positive growth or healing of their health issues, they may be less likely to do the things that caused them to come to prison in the first place. This will be of benefit for everyone. I am also so happy that Indiana DOC added correctional personnel and mental health staffing. These are tough issues to work with. There should be adequate staffing in prisons so correctional officers and other staff are able to do the kind of work they really want to do-helping people grow and change-rather than just trying to manage chaos. Correctional officers and other staff deserve this. It would be great to see increased mental health services and services for people with intellectual or developmental disabilities in the community so that fewer people will have to receive help and support in prisons. Community services would like be less expensive, inherently less demeaning and just a whole lot better for everyone.

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