Confidentiality and Restricted Information
One of the most frustrating responses for a child welfare or court professional when they call a drug treatment program is:
“I can neither confirm nor deny that PERSON X is a client in our program.”
But the fact is, that statement has been carefully crafted by dozens, hundreds, even thousands of attorneys who are all concerned with one thing: Confidentiality regulations.
What they mean to say is:
“As a drug treatment provider, our program is bound by very serious laws regarding confidentiality. We are not allowed to say whether or not a person is a participant in our programs, or provide any information about that person. We cannot give out information even if the person just called for an appointment and never showed up, or if the person is already deceased. And we can’t say that a person is not a member of our program, because then it would be obvious who is a member. This is done to protect the anonymity of people with drug problems and encourage them to seek treatment without fear of stigma or reprisal. Unfortunately, when people call for clients, we are left with few options except to state we cannot say whether or not he is even here. I know this sounds evasive, and can make matters worse, but we are bound by the law.”
In an effort to ensure that people in need of drug and alcohol treatment don’t avoid it for fear of stigma, we have what is known as 42 CFR pt. 2, B, or Confidentiality.
The basic principle is that any “program” that is “federally assisted” (eg., accepts Medicaid as a form of payment) cannot disclose information that identifies a patient as being in a drug/alcohol program or as having a drug or alcohol problem.
This law protects current clients, past clients, and even people who sought services but were not admitted into the program. Clients include anyone who has applied for or received services related to substance abuse prevention, treatment, diagnosis, or referral for treatment. This includes people who made an actual appearance as well as those whose contact was limited to a phone call.
While this is primarily a law guiding drug treatment professionals, if child welfare staff or units take on responsibility of providing substance abuse diagnosis, treatment, referral, prevention services, they too must comply with HIPAA and Confidentiality regulations.
In order for a treatment program to share information, a waiver is required. This waiver is a carefully worded document that allows clients to specify:
- The purpose and type of information that can be shared
- Who the information can be shared with
- How long the waiver is in effect (if the waiver is expired or deficient, or known to be revoked or invalid, requests for information should be refused.)
The waiver always states that information cannot be re-disclosed to a third party. This means that there is a limit to the extent to which information can be shared.
In general, information can only be released with a waiver or consent. (There are several exceptions to this rule, such as crimes on premises or against staff, in the case of a medical emergency, for research, or with a court order (not just a subpoena.)
(For clarification, the Confidentiality law is much stricter than HIPAA, which is something that most people are familiar with now as part of health care. HIPAA, which was enacted in 1996, protects the privacy of medical records and allows individual access to these records. HIPAA is not specific to substance abuse treatment. Whenever there are conflicts between HIPAA and Confidentiality, the more stricter of the two laws applies.)
Naturally, this can make it difficult for drug treatment and child welfare providers to share information to coordinate services. Drug treatment providers should be urged to encourage clients to sign waivers as an effort to demonstrate their progress to child welfare and court professionals. That said, parents who prefer to not sign waivers need to understand that without a waiver and relevant updates, the court has the option to assume the worst in terms of progress.
