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Confidentiality of Patient Records
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Records of patients undergoing treatment for drug or alcohol
abuse are confidential. See 42 U.S.C. § 290ee-3 and 42 U.S.C.
§ 290dd-3. The confidentiality requirements extend to all alcohol
and drug abuse programs conducted, regulated, or directly or indirectly
assisted by the Federal Government. See 42 U.S.C. § 290ee-3,
42 U.S.C. § 290dd-3 and 42 C.F.R. § 2.
The confidentiality statutes and regulations specify the manner
in which requests should be made by law enforcement officials for
patient records and other patient information for investigative or
prosecutive purposes. Patient records and similar information cannot be
released to law enforcement officers until a court order has been
obtained by the officers authorizing such release. See 42 U.S.C.
§ 290ee-3(2) (c), 42 U.S.C. § 290dd-3(2) (c), and 42 C.F.R.
§ 2.61 et seq.
Regarding the strict manner in which the confidentiality
requirements are construed, see United States v. Graham, 548 F.2d
1302, 1314 (8th Cir. 1977).
The responsibility of United States Attorneys with regard to
providing legal representation in patient confidentiality matters is as
follows. Most alcohol and drug abuse programs are conducted by state or
local treatment personnel, with appropriate Federal financial
assistance. Personnel of such programs seem to be merely private
individuals who manage programs which are funded by the Federal
government. The fact that such programs are federally funded would not
seem to make them Federal, or even quasi-Federal, programs. See
generally, Pope v. Commissioner of Internal Revenue, 138 F.2d
1006, 1009 (6th Cir. 1943); National Labor Relations Board v. Jones &
Laughlin Steel Corp., 331 U.S. 416, 429 (1947); 67 C.J.S. Officers
Sec. 3. The Attorney General may not provide legal representation solely
to vindicate private rights or to redress private grievances in which
the public has no vital interests. Allen v. County School Board of
Prince Edward County, 28 F.R.D. 358 (E.D. Va. 1961), The Attorney
General may, however, authorize a United States Attorney to represent a
non-government party in a civil case where the interests of the United
States are meaningfully involved. See Brawer v. Horowitz, 535
F.2d 830 (3d Cir. 1976); 28 U.S.C. § 517. See also In re
Debs, 158 U.S. 564, 586 (1895). However, it is doubtful that cases
involving attempts by law enforcement officers to obtain drug patient
records could be said to involve Federal interests to such an extent as
to warrant legal representation of alcohol or drug abuse program
personnel by United States Attorneys or members of their legal staff. In
short, United States Attorneys appear to have no obligation to act as
legal representatives for program personnel when requests are made of
such personnel by law enforcement officers for patient records or other
patient information.
Although United States Attorneys have no obligation to represent
program personnel in confidentiality matters, nevertheless, when any
such a matter comes to the attention of a United States Attorney at an
early stage, he/she should endeavor, acting as an amicus curiae, to
advise the appropriate court in an informal manner of the requirements
of the confidentiality statutes and regulations.
United States Attorneys are responsible for prosecuting cases
involving unauthorized or improper disclosure of patient records. The
sanctions for such violations are the fines set forth in 42 U.S.C. §
290ee-3(f) and 42 U.S.C. § 290dd-3(f). The prosecutive obligation is
based on the Department's responsibility to enforce all Federal criminal
statues, 28 U.S.C. § 516. See United States v. Tonry,
443 F. Supp. 620 (E.D. La. 1.77). When a report of an alleged
confidentiality violation is received by a United States Attorney, the
matter should be carefully reviewed to determine whether the facts and
the nature of the violation warrant prosecutive action. Should any
difficulties arise in this regard, the United States Attorney should
consult the Narcotic and Dangerous Drug Section of the Criminal
Division.
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