When can a North Carolina substance abuse treatment facility release information about a patient to police, a court, or to anyone else, and how do federal rules and state rules interact?

Plain-English summary

This 1994 opinion explained when drug and alcohol treatment programs could disclose patient information, particularly to law enforcement. It distinguished programs covered by federal confidentiality law from programs subject only to North Carolina's Chapter 122C. A federally assisted program had to obey federal disclosure prohibitions and any further State prohibitions. State permission or a State disclosure duty could not authorize what federal law forbade.

The opinion listed several ways a program could be federally assisted, including federal operation, specified federal licenses or registrations, federal funding, and federal tax status. For a covered program, federal law protected information that could identify a current or former patient as an alcohol or drug abuser. A publicly recognized program generally could not even confirm a person's patient status.

The opinion discussed limited federal routes for disclosure to law enforcement: valid patient consent; an initial child-abuse or neglect report and investigation; specified crimes or threats on program premises or against personnel; and properly authorized court orders for investigations of patients, programs, or staff. For a patient prosecution, the cited regulation required findings about the crime's seriousness, the records' likely value, alternatives, and the balance of public need against patient harm. An order permitted disclosure but did not compel it; compulsion required a subpoena or similar mandate as well. A subpoena alone did not permit disclosure.

For programs without federal assistance, the opinion described State permissions and duties under Chapter 122C, including written client release, a court order, a responsible professional's judgment about imminent danger or likely serious crime, certain abuse reports, and notification for specified escapes or breaches from a 24-hour facility. The opinion expressly said there was no comparable federal provision for escape disclosure. It also said State law permitted disclosure concerning disabled-adult abuse where federal law did not. A federally assisted program could not rely on those State-only permissions to bypass federal restrictions.

Currency note

This opinion describes the federal and State law in 1994. Check current confidentiality statutes, regulations, and program status before making a disclosure today.

Background and statutory framework

The federal-state interaction rule quoted from 42 C.F.R. § 2.20 required federally assisted programs to follow both layers where both applied and prevented State law from overriding a federal prohibition. The opinion then analyzed federal permissions before turning to State-only rules for programs without federal assistance.

The opinion drew practical distinctions among permission, an obligation, and compulsory process. Under the federal court-order procedure it described, an order could authorize release while a subpoena or similar process was also needed to compel it. Under State law, some disclosures were optional and others, such as specified notifications about escapes, were required. The State escape notification did not itself create a federal exception.

Common questions

Is a subpoena alone enough for a federally assisted program to release patient information?

No. Under the federal procedure described in the opinion, a subpoena alone neither authorized nor permitted disclosure. A qualifying court order authorized it; a subpoena or similar process was needed as well to compel it.

Could a federally assisted program report suspected child abuse?

The opinion said federal law allowed an initial report and investigation under State law. It also said the disclosed patient information could not be used in later civil or criminal proceedings arising from the report.

Did the State escape-notification statute create a federal disclosure exception?

No. The opinion said State law required notification for specified clients who escaped or breached release conditions, but that federal law had no comparable disclosure provision. A federally assisted program still had to follow federal prohibitions.

Did federal law allow the State's disabled-adult abuse disclosure?

The opinion said State law permitted that disclosure unlike federal law. It did not identify a matching federal permission, so State permission alone was insufficient for a federally assisted program.

Could a non-federally-assisted facility disclose information because of imminent danger?

Under the State provision described in the opinion, a designated responsible professional could choose to disclose information on the stated danger or likely serious-crime grounds. The opinion called that release optional and based on the professional's judgment.

Citations

• 42 U.S.C. §§ 290dd-3(a), 290ee-3(a)
• 42 C.F.R. § 2.12
• 42 C.F.R. § 2.13
• 42 C.F.R. § 2.20
• 42 C.F.R. § 2.31
• 42 C.F.R. § 2.61
• 42 C.F.R. § 2.65
• 42 C.F.R. § 2.66
• N.C. Gen. Stat. § 122C-3(6), (9), (14), (32)
• N.C. Gen. Stat. § 122C-53(a)
• N.C. Gen. Stat. § 122C-54(a), (h)
• N.C. Gen. Stat. § 122C-55(d)
• N.C. Gen. Stat. § 122C-205
• N.C. Gen. Stat. § 7A-544

Source

• Landing page: https://ncdoj.gov/opinions/confidentiality-of-patient-information-at-drug-and-alcohol-abuse-treatment-facilities/

Original opinion text

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• (1) Must obey all federal disclosure prohibitions; and
• (2) Must obey any State law disclosure prohibitions beyond the prohibitions of the federal law; but
• (3) May not disclose information authorized or compelled to be disclosed by State law if disclosure of that same information is prohibited by federal law. (See, 42 C.F.R. § 2.20).

Facilities that are not federally assisted are subject only to State law restrictions. In some circumstances, non-federally assisted facilities may be required or permitted by State law to make disclosures that federally assisted facilities would be prohibited from making. These circumstances will be discussed later, following a discussion of the restrictions that apply to federally assisted programs.

The definition for federally assisted programs is detailed in 42 C.F.R. § 2.12(b) and (c). Generally, alcohol or drug abuse programs are considered to be federally-assisted if they are:

• (1) Conducted by United States government agencies;
• (2) Carried out under federal licenses, certifications, registrations or other authorizations, such as Medicare, methadone maintenance treatment authorization, or controlled substance dispensing registration;
• (3) Supported by funds from the federal government (a program is considered to be supported by such funds if the facility or department housing the program receives such funds, even if the funds are not used to pay for the program itself); or
• (4) Tax exempt, or tax deductions may be taken for contributions to the program.

It is a federal crime for federally assisted alcohol or drug abuse programs and their personnel to disclose certain information, whether recorded or not, concerning patients. The federal law prohibits disclosure of information concerning the identity, diagnosis, prognosis, treatment, education, training, rehabilitation or referral for treatment of current or past patients. 42 U.S.C. §§ 290dd-3(a) and § 290ee-3(a). The law also prohibits the disclosure of any information that might identify a patient as a past or present alcohol or drug abuser. 42 C.F.R. § 2.12. Thus, disclosing the presence of a person as a patient at a publicly-recognized drug or alcohol abuse program is expressly prohibited, since revealing that information might identify that person as a drug or alcohol abuser. 42 C.F.R. § 2.13(c). However, a facility may acknowledge the presence of a patient at the facility if it is not publicly recognized as a drug or alcohol abuse program, so long as disclosing the patient's presence does not identify him as an alcohol or drug abuser. The regulations also do not prohibit disclosing that a person is not and has never been a patient. 42 C.F.R. § 2.13(c).

The federal regulations state specifically that the disclosure prohibitions apply to the release of information to law enforcement personnel. 42 C.F.R. § 2.13(b). However, the statute and regulations specify certain limited circumstances in which release of confidential patient information by federally assisted programs to law enforcement personnel may be permitted or required. These circumstances are listed here, and discussed below:

• (1) The patient consents to release of the information;
• (2) The program is reporting suspected incidents of child abuse or neglect under State law;
• (3) A patient commits a crime on the program premises, or against program personnel, or threatens to commit such a crime;
• (4) A court has issued a proper order for release of information in criminal investigations or prosecutions of patients; or
• (5) A court has issued a proper order for release of information in criminal/administrative investigations or prosecutions of the program or program personnel.

A federally assisted program may disclose patient information if the patient consents. The conditions for obtaining patient consent are listed in detail in the federal regulations. 42 C.F.R. § 2.31. Generally, these conditions ensure that consent is given voluntarily, and that use of disclosed information is restricted to the purposes for which consent is given.

A federally assisted program may disclose patient information to proper authorities in reporting suspected incidents of child abuse or neglect under State law. 42 C.F.R. § 2.12(c)(6). In North Carolina, child abuse and neglect reports are made typically to county Departments of Social Services. However, these departments are permitted to seek the assistance of local or State law enforcement personnel in evaluating or investigating abuse or neglect reports. N.C. Gen. Stat. § 7A-544. It is possible, therefore, that substance abuse program personnel might reveal confidential information to law enforcement personnel acting under authority of the Director of a Department of Social Services. However, the disclosure of information under these circumstances would be limited to the initial reporting and investigation by the Department of Social Services. Program personnel may not disclose patient information for use in civil or criminal proceedings which may arise out of the report of suspected child abuse or neglect. 42 C.F.R. § 2.12(c)(6).

The circumstances in which federally assisted program personnel may disclose patient information to law enforcement personnel for criminal investigations or prosecutions of patients are closely regulated. Those seeking to investigate or prosecute patients must apply for a court order. An application for a court order must use a fictitious name such as John Doe to refer to the patient, and the application may not use any other information that might identify the patient. The program must be given adequate notice, an opportunity to be heard, and an opportunity to be represented by counsel at a hearing to determine whether the information sought should be disclosed. (If the program is run by a government agency, that agency must be represented by counsel). Hearings are confidential. The court may authorize disclosure and use of the information only if it finds:

• (1) The investigation involves an extremely serious crime;
• (2) There is a reasonable likelihood that the records will reveal information of substantial value to the investigation;
• (3) Other ways of obtaining the information are unavailable or would be ineffective; and
• (4) The public interest in the need for the records outweighs potential injury to the patient.

If the court authorizes disclosure, the order must be drawn narrowly to accomplish only the purposes for which it was made and to avoid further unnecessary disclosures. 42 C.F.R. § 2.65.

The court's order may authorize the program to disclose confidential information. However, the court's order may not compel the program to disclose information. If the agency seeking the information wishes to compel disclosure, it must also obtain a subpoena or similar legal mandate, which may be obtained at the same time as the order. 42 C.F.R. § 2.61.

Thus, a court order, alone, merely permits but does not require a program to disclose patient information. A subpoena, alone, neither authorizes nor permits a federally assisted program to disclose patient information. A program is required to disclose patient information only if the law enforcement agency has obtained a court order and a subpoena or other form of compulsory process. 42 C.F.R. § 2.61.

Federally assisted programs may also be required or permitted to disclose patient information to law enforcement personnel in investigations or prosecutions of the program, itself, or its personnel. Generally, the prerequisites and restrictions for releasing information in these circumstances are the same as those for releasing information in investigations or prosecutions of patients. These procedures and restrictions are detailed at 42 C.F.R. § 2.66. The major differences are that in investigations of programs or their personnel, notice of the court hearing before issuance of the disclosure order is optional. Also, no patient information obtained in investigations of programs or their personnel may be used to investigate or prosecute patients. Id.

As was mentioned earlier, drug or alcohol abuse treatment programs that are not federally assisted are subject only to the disclosure restrictions of Chapter 122C of the North Carolina General Statutes.

In many respects, State law restrictions on the disclosure of patient information are similar to the federal restrictions. Drug and alcohol abuse treatment facilities and their personnel are prohibited from disclosing client information, whether recorded or not, concerning the care, treatment, habilitation or rehabilitation of substances abusers. N.C. Gen. Stat. § 122C-3(9) and (14). Disclosure prohibitions apply to in-patient and out-patient clients, and to current and past clients. N.C. Gen. Stat. § 122C-3(6). Although State law does not specify that the identity of a client, or his presence at a facility, are confidential information, these are impliedly confidential information. (E.g., statistical information about treatment of patients may be disclosed for training or monitoring purposes so long as such information "does not identify clients." N.C. Gen. Stat. § 122C-3(9).

The circumstances in which confidential client information is permitted or required by State law are listed here, and discussed below:

• (1) The patient consents to release of the information;
• (2) A court orders release of the information;
• (3) There is an imminent danger to the health or safety of the client or another individual or there is a likelihood of the commission of a felony or a violent misdemeanor;
• (4) The information is part of a report of neglect or abuse of a child or disabled adult; or
• (5) A confined client escapes from the facility.

Under State law, a facility is permitted to disclose confidential information if the client releases it. The release must be in writing and must specify the person to whom the information is releasable. N.C. Gen. Stat. § 122C-53(a). These provisions are similar to federal law, except federal law specifies the detailed contents of written patient releases. (Compare, 42 C.F.R. § 2.31).

Under State law, a facility is required to disclose confidential information if a court of competent jurisdiction issues an order compelling disclosure. N.C. Gen. Stat. § 122C-54(a). Unlike the federal statute and regulations, this subsection does not specify any limiting conditions for such an order, or factors to be considered by the court in issuing such an order. (Compare, 42 C.F.R. §§ 2.65 and 2.66).

Under State law, confidential client information may be disclosed by facilities to law enforcement personnel or to others if, in the opinion of a responsible professional, there is an imminent danger to the health or safety of a client or another individual or there is a likelihood of the commission of a felony or violent misdemeanor. N.C. Gen. Stat. § 122C-55(d). A "responsible professional" is a person in the facility designated by the director and eligible to provide care, treatment, habilitation, or rehabilitation to the specific client. N.C. Gen. Stat. § 122C-3(32). The release of information under this provision is optional, based on the opinion of the responsible professional. Although similar to the provisions of this section, federal law is more restrictive, allowing release only of certain specified information when a crime is committed or threatened on the premises or against program personnel. (Compare, 42 C.F.R. § 2.12(c)(5).

Like federal law, State law permits a facility to disclose confidential information for purposes of reporting or assisting in the investigation of suspected incidents of child abuse or neglect. Unlike federal law, State law permits facilities to disclose confidential client information for the purposes of reporting or assisting in the investigation of suspected incidents of abuse, neglect, or exploitation of disabled adults. N.C. Gen. Stat. § 122C-54(h). This provision also differs from federal law in that the federal law specifies the patient information remains confidential and may not be used in civil or criminal proceedings stemming from abuse reports. (Compare, 42 C.F.R. § 2.12(c)(6).

Under specified circumstances, when certain clients who are committed to, detained at, or on conditional release from a 24-hour facility either escape or breach conditions of release, the facility is required by State law to notify certain law enforcement agencies. N.C. Gen. Stat. § 122C-205. In these circumstances, the facility may disclose sufficient confidential information to identify the client to assure his return to the facility, and to assist the law enforcement personnel in protecting the public. There is no comparable federal provision for disclosing information under these circumstances.

We hope that this fully answers your request. Should you have further questions regarding this issue, please do not hesitate to contact us.

Wanda G. Bryant
Senior Deputy Attorney General

Daniel D. Addison
Associate Attorney General