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February 9, 1994

 

 

Mr. Jeremiah Smith
81-A-1837
900 Kings Highway
Warwick, NY 10990-0900

Dear Mr. Smith:

I have received your letter of January 1. In brief, although
you were informed that records concerning your participation in a
drug treatment program would remain confidential, you wrote that a
counselor with the program informed your parole officer that you
were "on drugs".

You have asked for information concerning the confidentiality
of the information that was disclosed.

In this regard, it is my understanding that the information in
question is confidential pursuant to federal law when a program is
covered by federal law, and I have been informed that most
treatment programs are subject to that law, unless the subject of
the record consents to disclosure.

Specifically, 42 U.S.C. §290ee-3 state in relevant part that:

"(a) Disclosure authorization

Records of the identity, diagnosis, prognosis,
or treatment of any patient which are
maintained in connection with the performance
of any drug abuse prevention function
conducted, regulated, or directly or
indirectly assisted by any department or
agency of the United States shall, except as
provided in subsection (e) of this section, be
confidential and be disclosed only for the
purposes and under the circumstances expressly
authorized under subsection (b) of this
section.

(b) Purposes and circumstances of disclosure
affecting consenting patient and patient
regardless of consent

(1) The content of any record referred to in
subsection (a) of this section may be
disclosed in accordance with the prior written
consent of the patient with respect to whom
such record is maintained, but only to such
extent, under such circumstances, and for such
purposes as may be allowed under regulations
prescribed pursuant to subsection (g) of this
section.

(2) Whether or not the patient, with respect
to whom any given record referred to in
subsection (a) of this section is maintained,
gives his written consent, the content of such
record may be disclosed as follows:

(A) To medical personnel to the extent
necessary to meet a bona fide medical
emergency.

(B) To qualified personnel for the
purpose of conducting scientific
research, management audits, financial
audits, or program evaluation, but such
personnel may not identify, directly or
indirectly, any individual patient in any
report of such research, audit, or
evaluation, or otherwise disclose patient
identities in any manner.

(C) If authorized by an appropriate
order of a court of competent
jurisdiction granted after application
showing good cause therefor. In
assessing good cause the court shall
weigh the public interest and the need
for disclosure against the injury to the
patient, to the physician-patient
relationship, and to the treatment
services. Upon the granting of such
order, the court, in determining the
extent to which any disclosure of all or
any part of any record is necessary,
shall impose appropriate safeguards
against unauthorized disclosure.

(c) Prohibition against use of record in
making criminal charges or investigation of
patient

Except as authorized by a court order granted
under subsection (b)(2)(C) of this section, no
record referred to in subsection (a) of this
section may be used to initiate or
substantiate any criminal charges against a
patient or to conduct any investigation of a
patient.

(d) Continuing prohibition against disclosure
irrespective of status as patient

The prohibitions of this section continue to
apply to records concerning any individual who
has been a patient, irrespective of whether or
when he ceases to be a patient."

I have been informed that there is a New York State agency to
which you may complain and which may have the authority to
investigate concerning a claim that information has been
inappropriately disclosed. You may write to the Client Advocacy
Unit, Office of Alcohol and Substance Abuse Services, 55 West 125th
Street, New York, NY 10027-4516.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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