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Criminal Resource Manual

1872. Confidentiality Of Patient Records

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.