Substance Abuse Treatment
and Domestic Violence
Appendix B -- Federal Confidentiality
Regulations
by Margaret K. Brooks, Esq.1
Federal law (United States Code, Title 42, 290dd-2 [1992]) and the Federal
regulations that implement it -- Title 42, Part 2, of the Code of Federal
Regulations (42 C.F.R. Part 2) -- guarantee the strict confidentiality of
information about all persons receiving substance abuse prevention and treatment
services.2 They are designed to protect privacy rights and thereby
attract individuals into treatment. The regulations are more restrictive of
communications than are those governing the doctor-client relationship or the
attorney-client privilege. Violating the regulations is punishable by a fine of
up to $500 for a first offense or up to $5,000 for each subsequent offense (
2.4).
While some persons may view the restrictions that Federal regulations place
on communications as a hindrance, if not a barrier, to program goals, due
foresight can eliminate most of the problems that arise from the regulations.
Familiarity with the regulations will facilitate communication and minimize the
incidence of confidentiality-related conflicts among program, client, and
outside agencies.
Types of Programs Covered by the Regulations
Any program that specializes, in whole or in part, in providing treatment,
counseling and assessment, and referral services, or a combination thereof, for
clients with alcohol or other drug problems must comply with the Federal
confidentiality regulations ( 2.12(e)). It is the kind of services provided, not
the label, that determines whether a program must comply with the Federal law.
Calling itself a "prevention program" does not insulate a program that also
offers treatment services from the need to comply with confidentiality
regulations. Although the Federal regulations apply only to programs that
receive Federal assistance, the word assistance is broadly interpreted
and includes indirect forms of Federal aid such as tax-exempt status or State or
local funding that is derived, in whole or in part, from the Federal
government.
Federal Confidentiality Laws
The Federal confidentiality law and regulations protect any information about
a client if the client has applied for or received any alcohol- or drug
abuse-related services -- including assessment, diagnosis, detoxification,
counseling, group counseling, treatment, and referral for treatment -- from a
covered program.3 The restrictions on disclosure apply to any
information that would identify the client as a substance abuser, either
directly or by implication. The rule applies from the moment the client makes an
appointment. It applies to clients who are civilly or involuntarily committed,
minors, clients who are mandated into treatment by the criminal justice system,
and former clients. Finally, the rule applies whether or not the person making
the inquiry already has the information, has other ways of getting it, enjoys
official status, is authorized by State law, or comes armed with a subpoena or
search warrant.4
Conditions Under Which Confidential Information May Be
Shared
Information that is protected by the Federal confidentiality regulations may
always be disclosed after the client has signed a proper consent form. If the
client is a minor, parental consent must also be obtained in some States. The
regulations also permit disclosure without the client's consent in several
situations, including communicating information to medical personnel during a
medical emergency or reporting child abuse to the authorities.
The most commonly used exception to the general rule prohibiting disclosures
is for a program to obtain the client's consent. The regulations' requirements
regarding consent are somewhat unusual and strict and must be carefully
followed.
Items required for disclosure of information
Disclosures are permissible if a client has signed a valid consent form that
has not expired or been revoked ( 2.31). A proper consent form must be in
writing and must contain each of the items that appear in Figure B-1.
A general medical release form, or any consent form that does not contain all
of the elements listed in Figure B-1, is not acceptable. A sample consent form
may be found in Figure B-2. Two of the required items in Figure B-1 merit
further explanation: the purpose of the disclosure and how much and what kind of
information will be disclosed. These two items are closely related. All
disclosures, especially those made pursuant to a consent form, must be limited
to information that is necessary to accomplish the need for or purpose of the
disclosure ( 2.13(a)). It would be improper to disclose everything in a client's
file if the person making the request needed only one specific piece of
information.
In completing a consent form, one must determine the purpose of or need for
the communication of information. Once this has been identified, it is easier to
determine how much and what kind of information will be disclosed and to
restrict the disclosure to what is essential to accomplish the identified need
or purpose. As an illustration, if a client needs to have the fact that he or
she has entered a treatment program verified in order to be eligible for a
benefit program, the purpose of the disclosure would be "to verify treatment
status," and the amount and kind of information to be disclosed would be
"enrollment in treatment." The disclosure would then be limited to a statement
that "Jane Doe (the client) is receiving counseling at XYZ Program."
The client's right to revoke consent
The client may revoke consent at any time, and the consent form must include
a statement to this effect. Revocation need not be in writing. If a program has
made a disclosure prior to the revocation, the program has "acted in reliance"
on the consent and is not required to try to retrieve the information it has
already disclosed.
The regulations state that acting in reliance includes providing services in
reliance on a consent form permitting disclosures to a third party payer. Thus,
a program may bill the third party payer for past services to the client even
after consent has been revoked. A program may not, however, make any disclosure
to the third party payer in order to receive reimbursement for services provided
after the client has revoked consent ( 2.31(a)(8)).
Expiration of the consent form
The form must also contain a date, an event, or a condition on which it will
expire, if not previously revoked. A consent must last "no longer than
reasonably necessary to serve the purpose for which it is given" ( 2.31(a)(9)).
If the purpose of the disclosure is expected to be accomplished in 5 or 10 days,
it is better to stipulate that amount of time rather than to request a longer
period or have a uniform 60- or 90-day expiration date for all forms.
The consent form may specify an event or a condition for expiration, rather
than a date. For example, if a client has been placed on probation on the
condition that he or she attend the treatment program, the consent form should
not expire until the expected time of completion of the probationary period.
Alternatively, if a client is being referred by the program to a specialist for
a single appointment, the consent form should say that consent will expire after
he or she has seen "Dr. X," unless the client is expected to need ongoing
consultation with the specialist.
Source: The National Clearinghouse for Alcohol and Drug Information
DHHS Publication No. (SMA) 97-3163
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