Disclosure of Confidential Client Information

Goal - why is this important to us?

To establish guidelines for maintaining confidentiality of client records and to identify circumstances under which information may be disclosed.

DEFINITIONS

Confidential Information - All personally identifiable information and material about a client, including information contained in automated data banks, and the information that an individual is or is not receiving services.

Confidentiality – To keep all personally identifiable information about a client private and not allow such information to be seen or used by anyone who does not have specific authorization to do so.

Documentable Request - A written request, or a verbal request which shall be documented by staff in the clinical record.

Limited Data Set – Protected health information that excludes direct identifiers of the client or of relatives, employers, or household members of the client. Direct identifiers are: name, postal address information, phone and fax numbers, e-mail address, social security numbers, health plan beneficiary numbers, account numbers, certificate/license numbers, vehicle identifiers, device identifiers or serial numbers, URL’s, internet protocol address numbers, bio-metric identifiers, and photographic or any comparable images.

POLICY

Information in the record of a client, and other information obtained while providing services to a client, shall be kept confidential, including the fact that a person is or is not receiving services. Confidential information may be disclosed outside Dawn Farm only in the circumstances allowed by law and referenced in this Policy.

REFERENCES

• Dawn Farm Policy on Sanctions For Breaches Of Security Or Confidentiality
• Dawn Farm Policy on Use of Application Service Providers
• Dawn Farm Policy on Use Of Email For Client Related Communication

STANDARDS

General Rules Regarding Confidentiality of Treatment Information

Dawn Farm may release information or records concerning any person who has been assessed, diagnosed, or treated only with the specific written consent of that client or under certain very limited exceptions. This rule encompasses any information regarding that individual’s treatment as well as any information that would even identify the individual, directly or indirectly, as a substance abuser or treatment participant. Therefore, Dawn Farm may not even acknowledge that an individual is a client to anyone who is not authorized by written consent to receive that information, since such acknowledgment would effectively identify the individual as a substance abuser.

Exceptions to this general prohibition against disclosure of confidential client information include the following:

• Written consent of the client,
• Internal treatment program communications,
• Information that does not identify the client,
• Medical emergency,
• A properly authorized court order,
• Information relating to a crime performed on the program premises or against program personnel,
• Suspicion of child abuse or neglect,
• Qualified service organization agreements,
• Research and audit
• Other than a medical emergency, the President or Clinical Director must approve any disclosure of client information outside of Dawn Farm without written consent.

Client Consent Forms

Information about an individual’s participation in Dawn Farm treatment services may be disclosed when that individual has given informed consent, in writing, for the disclosure. Before drug courts begin accepting participants into the program, a consent form should be designed that conforms to the requirements of 42 CFR, Part 2, and procedures should be clarified concerning the use of that form. (See attached exhibits of sample consent for disclosure of confidential substance abuse treatment information)

The following elements are required on client consent forms:

• Name of the person who, or organization that, may make the disclosure;
• Name/title (e.g., Presiding Judge) of the person to whom, or the organization (e.g., Office of the Prosecutor) to which, disclosure may be made;
• Treatment participant’s name;
• Purpose of the disclosure;
• How much and what kind of information may be disclosed;
• Treatment participant’s signature;
• Date on which the consent was signed;
• Statement that the consent is subject to revocation
  • except to the extent that the person or program that is to make the disclosure has already acted in reliance on it; and
  • except for clients mandated to treatment through the criminal justice system (see discussion below); and
• Date, event, or condition upon which the consent will expire if not revoked

Maintenance of Written Files

Dawn Farm is committed to ensuring that client records be safeguarded. To this end:

• Open case files will be stored in the facility that can best ensure their safeguarding and ease of access to the primary counselor. For residential, Detox and outpatient programs, this will be the facility where services are provided. For jail and street outreach programs, this will be the office of the counselor or outreach worker.
• Case file material is NEVER to be left out in the main offices after working hours. This includes desk tops, desk drawers and staff mail boxes. Any loose material with client names, including rosters, that is placed in a staff mailbox should be facing inward to protect confidentiality.
• Case files will be stored either in a locked cabinet or in a locked room, depending on the facility’s needs and practicality.
• In order to avoid any case files being misplaced, all cabinets and file holders will be clearly labeled. For open files, anyone other than the primary who removes a file must replace it with a place holder (to be found at the front of each file drawer) that specifies the date, the file removed and the person removing it. For closed files, a place holder will be used for any file removed, even for a short period.
• Dawn Farm client case files will be held for a period of not less than seven years following a client’s discharge from treatment.
• The President must approve the destruction of old files and they will be disposed of either by shredding or burning. Prior to destruction, demographic and treatment information will be gleaned for long term follow up and the development of broad statistical analysis.
• In the event a record is requested during the destruction process the destruction process will be halted until the record is located and retrieved. It will not be destroyed until the reason for the request is met.
• In the event of Dawn Farm's closure, the President will contact the Substance Abuse Coordinating Agency for assistance in client, financial and personnel file destruction.

Re-disclosure

Substance abuse treatment information may not be re-disclosed without the written consent of the client. Therefore, any information Dawn Farm receives from another substance abuse treatment provider is not to be re-disclosed without possession of specific written consent. In addition, any treatment information released by Dawn Farm, should be accompanied by a Notice of Prohibition Against Re-disclosure.

Accounting of Disclosures

A client has the right to request an accounting of disclosures of their confidential information made in the six years prior to the date on which the accounting is requested, but no sooner than April 14, 2003. This accounting does not have to include: disclosures that were for treatment, payment, and healthcare operations as outlined in the Notice of Privacy Practices; disclosures made without an Authorization that were required by law; disclosures for national security or intelligence purposes; disclosures made as part of a limited data set; or disclosures made pursuant to a signed Client Information Release Authorization.

The accounting must be provided to the client within sixty days of receipt of their request and must include disclosures that occurred during the preceding six years (or a shorter time period at the request of the individual), but not prior to April 14, 2003, and must include disclosures made to or by Dawn Farm and its business associates.

The accounting must include the date of the disclosure; the name of the person or entity to whom the disclosure was made; a brief description of the confidential information that was disclosed; and a brief statement of the purpose of the disclosure that reasonably informs the individual of the basis for the disclosure.

Client Access to His/Her Own Record

A client requesting access to his/her own record shall be asked to provide a written request to see part or all of the record, and provide appropriate identification before seeing the record. The assigned staff, supervisor, Program Administrator/Department Head, or designee shall be available to review the contents of the record with the client.If a client requests a copy of his/her record, the record shall be made available to the client within thirty days of receipt of the request. A reasonable amount for photocopying may be charged.

Client’s Right to Amend His/Her Own Record

A client, guardian, or parent of a minor may add a notation at any time in the clinical record, and this statement shall become part of the clinical record. A client, guardian or parent of a minor may challenge the accuracy, completeness, timeliness, or relevance of factual information in the record and may insert into the record a statement correcting or amending the information at issue, and this statement shall become part of the clinical record within 30 days of its receipt.

Dawn Farm must make reasonable efforts to inform and provide the amendment to any health care provider the client identifies as being in need of the amendment, and to persons, including business associates, that Dawn Farm knows have the record that is subject to amendment and that may have relied, or could foreseeable rely, on the information to the detriment of the client.

Dawn Farm has the right to deny a client’s request for an amendment if the information that is subject to the request was not created by Dawn Farm, unless the client provides a reasonable basis to believe that the originator of the record is no longer available to act on the request for amendment. If the request is denied in whole or in part, Dawn Farm must:

1. Provide a timely written denial containing the basis for the denial and, if possible, informing the client where to direct the request for amendment.
2. Notify the client that he/she may either submit a statement of disagreement or that he/she may request that Dawn Farm provide the request for amendment and denial with any future disclosures of the confidential information that is the subject of the amendment.
3. Provide a description of how the individual may complain to Dawn Farm or to the Secretary of Health and Human Services, including the name, title, and telephone number of the contact person at Dawn Farm who will handle such complaints.

WHAT TO SAY:

Here’s what to do when someone requests information:

First, when in doubt, do NOT disclose any information. Ask for help from your supervisor.

If we have a release, take a message for the primary counselor of that client.

If we don’t have a release, tell the person requesting information that due to 42 CFR Part 2 we are unable to confirm or deny the person’s presence. We can offer to take a message and give it to the person in question if that person is in one of our facilities.

Occasionally we will have law enforcement call and demand information that we are not allowed to disclose. If this happens do not give any information, explain that we cooperate with law enforcement but federal law prohibits us from giving any information without a release of information. Take a message for your supervisor. If they persist, they rarely do, call your supervisor.

PRACTICAL GUIDE FROM U.S. DEPARTMENT OF JUSTICE

The following guidelines are from Practical Guide for Applying Federal Confidentiality Laws to Drug Court Operations, U.S. Department of Justice.

IX. Subpoenas, Warrants and Court Orders

A. General

Treatment programs for substance abuse may not disclose information about a current or former client in response to a subpoena, even a subpoena signed by a judge, unless that client signs a consent form authorizing such disclosure or a court of competent jurisdiction enters an authorizing order under the standards set forth in the Federal regulations (42 CFR § 2.61). Courts may issue orders permitting substance abuse treatment programs to make disclosures that would otherwise be prohibited, but only after following specific procedures and making particular findings and determinations required by Federal regulation. The following is a brief summary of the requirements for making such findings and determinations, as set forth in the Federal regulations.

B. Court Orders: Criminal Investigations or Prosecutions of Treatment Participants

Where a court order (including a warrant) for disclosure of information regarding substance abuse treatment is requested as part of a criminal investigation or prosecution, a court hearing must be held and a determination made that the following criteria exist before a judge may issue the order:

• The crime involved must be extremely serious (including homicide, rape, kidnapping, armed robbery, assault with a deadly weapon, or child abuse or neglect);

• There must be a reasonable likelihood that the records will disclose information of substantial value in the investigation or prosecution;

• Other ways of obtaining the information are not available, or would be ineffective; and

• The potential injury to the client or the client-program relationship and the ability of the program to serve other clients must be outweighed by the public interest and need for disclosure (42 CFR §§ 2.65(d)(1), (2), (3), and (4)).

The judge may review the records in camera before making a decision to order disclosure. If an application for disclosure comes from law enforcement officials, the program must be given an opportunity to be represented by counsel before the judge rules, and if the disclosure is ordered, it must be limited to those parts of the client’s records that are essential to meet the objective of the order and to those law enforcement or prosecutorial officials who are conducting that particular investigation or prosecution. Use of the records must be limited to the investigation or prosecution of the crime specified in the application for the order (42 CFR §§ 2.64(d)(5) and (e)).

A court may order disclosure of otherwise confidential client communications regarding substance abuse treatment only if the disclosure is necessary to protect against a threat to life or of serious bodily injury; necessary to investigate or prosecute an extremely serious crime (see illustrative list, above); or in connection with a proceeding in which the client undergoing treatment has already offered testimony pertaining to the content of the confidential communications (42 CFR § 2.63).

C. Court Orders: Noncriminal Purposes

In a civil action, the program and the client whose records are being sought must be given notice of any application for a court order for disclosure and be given an opportunity to respond. The application must use a fictitious name to refer to any client and may not contain or disclose client-identifying information unless the client is the applicant or requests otherwise (42 CFR §§ 2.64(a) and (b)). The court must make a finding of “good cause” at a hearing before issuing an order for disclosure. “Good cause” exists only where the public interest and the need for disclosure outweigh any adverse effect that the disclosure will have on the client undergoing substance abuse treatment, the client-program relationship, and the effectiveness of the program’s treatment services. If the information sought is available through a source other than the substance abuse treatment program (e.g., court transcripts of proceedings in which the client admitted to a history of drug use), the court should not issue the order (42 CFR §2.64(d)). As in a criminal investigation, the judge may examine the records in camera to determine if they actually contain information that would justify the issuance of a court order (42 CFR §2.64(c)). A court order authorizing disclosure of confidential client records or information must be limited to those parts of the records that are essential to fulfill the objective of the order (42 CFR § § 2.65(e)(1) and (2)). Therefore, court orders may not properly be issued for the entire client file. The order must also limit access of the confidential records to those parties whose need for the disclosure is the basis for the order (42 CFR §2.65(e)(3)).

X. Other Exceptions to the General Rule

A. Child Abuse and Neglect Reporting

Treatment programs for substance abuse may release client-identifying information about suspected child abuse or neglect in jurisdictions where they are required by State law to do so. Only the initial report to the appropriate State or local authority is allowed. That initial report, however, may include only the treatment participant’s name, address, the nature of the suspected abuse or neglect, and how the reporter came to be aware of the suspected abuse or neglect. Details of the individual’s substance abuse or treatment should not be given. For purposes of subsequent investigation, and for use in civil or criminal proceedings that may arise out of the report of suspected child abuse and neglect, other restrictions on disclosure still apply to records of the treatment participant who has been reported (42 CFR § 2.12(4)(c)(6)).

B. Qualified Service Organizations

Treatment programs for substance abuse may enter into agreements with individuals or organizations that provide them with necessary services, such as data processing, bill collection, legal representation, accounting, liability insurance, urinalysis, etc. Before treatment participant information is shared with these service providers, written “qualified service organization agreements” (QSOA’s) must be signed. In the QSOA, the service provider must agree to protect the confidential information of each client to the same extent required by the treatment provider under the Federal regulations in the course of receipt, storage, processing, or other involvement with the materials (42 CFR §2.11), including resisting through judicial proceedings efforts to obtain that information. (See Appendix B, “Sample Qualified Service Organization Agreement.”)

C. Medical Emergency

Treatment programs may disclose relevant confidential information about a participant to medical personnel in the event of a bona fide medical emergency in which there is an immediate health threat that requires medical intervention. Relevant information includes the participant’s name, address, the nature of the apparent medical emergency, and an emergency contact name for the participant; if the program believes that the participant’s medical emergency is related to recent use of a specific drug or an ongoing illness of which the program is aware, that information may also be disclosed to the medical personnel.

D. Research

Information about a participant’s substance abuse treatment may be shared with researchers without written consent from the participant, providing the researchers have demonstrated to the program that they have a protocol that ensures secure storage of information and approved confidentiality safeguards. Researchers may not disclose information that reveals the name or identity of a treatment participant, directly or indirectly, and may not use information obtained in the course of their research for purposes of a criminal investigation or prosecution of a treatment participant (42 CFR §2.62). Researchers who engage in long-term or followup studies of treatment participants may not disclose a participant’s past relationship with substance abuse or treatment services to third persons in an effort to locate individuals for the study; researchers may make followup inquiries only if these inquiries do not reveal the individual’s status as a former substance abuse treatment program participant.

E. Audit and Evaluation

Government funders and regulators and private entities that provide financial assistance, third-party payments, peer review, or utilization and quality control of treatment services may have access to confidential treatment information in order to perform their functions, but only

after signing a written agreement like that required for a QSOA. This agreement must obligate the party to protect the information obtained in accordance with Federal requirements. These protections must include the destruction of any participant-identifying information that is removed from the program premises at the completion of the audit or evaluation.

F. Information That Does Not Identify the Clients

It is permissible to discuss treatment participants without using their names or other identifiers, such as Social Security numbers. This type of permissible communication applies to the reporting of aggregate data or to the use of clearly indicated pseudonyms. Communications that do not identify an individual as a substance abuser or treatment participant are also permissible. The requirement that client-identifying information not be communicated has significant implications for how staff of organizations providing treatment services communicate outside the treatment program. For example, staff of organizations that work exclusively or primarily with substance abusers should not leave telephone messages with their organization’s name, or send mail to participants that might identify the participant as involved in treatment services.

G. Internal Communications

Staff providing substance abuse treatment may discuss confidential information in connection with duties related to providing services to participants, which may include billing or legal challenges to efforts from individuals or organizations outside the treatment program to obtain information. Staff in organizations that have programs other than substance abuse treatment must have the written consent of the client receiving substance abuse treatment in order to disclose information to a staff member involved in other programs run by the organization.

H. Crime on Program Premises or Against Program Personnel

In reporting crimes by participants on the premises of the treatment program or against program personnel, treatment providers may disclose client information, limiting disclosure to the circumstances of the crime (including the participant status of the accused), the accused’s name and address, and his or her last known whereabouts (42 CFR §2.12(5)).

I. Veterans’ Administration or Armed Forces Records

The Federal laws and regulations under 42 USC and 42 CFR discussed in this document do not apply to information regarding substance abuse treatment provided by the Veterans’ Administration, which is governed by Title 38 of the United States Code and by regulations promulgated by the Administrator of Veterans’ Affairs (42 CFR §2.12(c)(1)). These laws and regulations do apply, however, to the communication of information obtained when a treatment participant was in the Armed Forces, except for the exchange of information within the Armed Forces and between the Armed Forces and the Veterans’ Administration for purposes of furnishing health care to veterans (42 CFR §2.12(2)).