Alcohol and drug counselors providing vocational rehabilitation (VR) services directly or through referral need to be aware of legal and ethical issues in three areas: discrimination against recovering individuals, welfare reform, and confidentiality.
Part I, Discrimination, examines
Part II, Welfare Reform, looks at the new Federal legislation governing public assistance and how it can affect individuals recovering from substance abuse disorders.
Part III, Confidentiality, outlines the requirements of the Federal confidentiality law and regulations and describes ways in which counselors can communicate with vocational training programs and employers.
Clients in substance abuse treatment who are entering or are in the job market sometimes encounter employer rejection or discrimination because of a history of substance use. For example, a computer training program might refuse to accept an applicant with a substance abuse disorder history. Or, a business may fire a secretary when it discovers that her request for medical leave was to allow her to enter a treatment program for alcoholism.
The section below outlines the protections Federal law currently affords people with substance abuse disorders, as well as the limitations of those protections and the available legal remedies. It describes how counselors can help clients deal with the issue of discrimination as they enter the job market. Also discussed are the protections offered by State antidiscrimin-ation laws, new legislation that reorganizes federally funded vocational training programs, and how the Drug-Free Workplace Act may affect the employment of former illegal drug users.
There are two Federal statutes that protect people with disabilities: sections 503 and 504 of the Federal Rehabilitation Act (29 United States Code [U.S.C.] §791 et seq. (1973)) and the ADA (42 U.S.C. §12101 et seq. (1992)). Together, these laws prohibit discrimination based on disability by private and public entities that provide most of the benefits, programs, and services an individual in treatment for a substance abuse disorder is likely to need in order to enter or reenter the world of work.1 These statutes outlaw discrimination by a wide range of employers.
Together, the Rehabilitation Act and ADA prohibit discrimination against individuals with disabilities in services, programs, or activities provided by
The Rehabilitation Act and ADA provide protection against discrimination by a wide range of employers,2 including
Together, the Rehabilitation Act and ADA cover discrimination in an extraordinarily broad range of establishments, services, programs, and employers.
The Rehabilitation Act and ADA prohibit discrimination on the basis of disability "in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation" (42 U.S.C. §12182(a)).3 Public accommodations--including training programs --are prohibited from
The Rehabilitation Act and ADA have two major limitations:
Employers may not
An employer may not ask an applicant about a disability before making an offer of employment, but can ask about her ability to perform specific job functions. An employer may also make a job offer contingent on the applicant's passing a postoffer medical examination if such an exam is required of all applicants for the particular job category (42 U.S.C. §12112(d)); 45 CFR §84.14; 29 CFR §1630.13).
In the employment context, the Rehabilitation Act and ADA have two major limitations:
The Rehabilitation Act explicitly adopts ADA's standards with regard to complaints of employment discrimination (29 U.S.C. §794(d)).
Both the Rehabilitation Act and ADA extend protection from discrimination4 to individuals
Examples of the kind of discrimination covered by these laws include individuals who may be turned down from certain positions because of poor eyesight (such as piloting airplanes) in spite of adequately corrective lenses; because of a past history of mental illness or substance abuse that an employer assumed will lead to trouble on the job; or because the individual is known to be HIV-positive, even though he has no symptoms that impair his ability to do the job.
For those seeking benefits and services, an individual with a substance abuse disorder is included in the definition of "individual with a disability" in many, but not all, instances. The Federal regulations implementing ADA and the Rehabilitation Act make a distinction between individuals whose substance abuse disorder involves alcohol and those who use illegal drugs.
In general, the Rehabilitation Act and ADA protect alcohol-dependent persons who are seeking benefits or services from an organization or agency covered by one of the statutes (29 U.S.C. §706(8)(C)(iii) and 42 U.S.C. §12110(c)), if they are "qualified" and do not pose a direct threat to the health or safety of others (28 CFR §36.208(a)). This means that an organization or program cannot refuse to serve an individual unless
For example, a hospital might take the position that an alcohol-dependent patient with dementia was not "qualified" to participate in occupational therapy because he could not follow directions. Or, an alcohol-dependent individual whose drinking results in assaultive episodes that endanger elderly residents in a long-term care facility might pose the kind of "direct threat" to the health or safety of others that would permit his exclusion.
The Rehabilitation Act also permits programs and activities providing services of an educational nature to discipline students who use or possess alcohol or illegal drugs (29 U.S.C. §706(8)(C)(iv)).
The Rehabilitation Act and ADA distinguish between former users of illegal drugs and current users.
Individuals who no longer are engaged in the illegal use of drugs and have completed or are participating in a drug rehabilitation program are protected from discrimination to the same extent as alcohol abusers (29 U.S.C. §706((8)(C)(ii) and 42 U.S.C. §12210(b)). In other words, they are protected so long as they are "qualified" for the program, activity, or service and do not pose a "direct threat" to the health or safety of others. Service providers may administer drug tests to ensure that an individual who formerly used illegal drugs no longer does so (28 CFR §36.209(c) and 28 CFR §35.131(c)). For example, if an applicant for a vocational training program claims he no longer uses illegal drugs and has completed a course of rehabilitation, the training program could administer drug tests to determine that he is no longer using illegal drugs.
Individuals currently engaging in the illegal use of drugs are offered full protection only in connection with health and drug rehabilitation services (28 CFR §36.209(b) and 28 CFR §35.131(b)). (However, drug treatment programs may deny participation to individuals who continue to use illegal drugs while they are in the program (28 CFR §36.209(b)(2).) The laws explicitly withdraw protection with regard to other services, programs, or activities (29 U.S.C. §706(8)(C)(i) and 42 U.S.C. §12210(a)).
A hospital that specializes in treating burn victims could not refuse to treat a burn victim because he uses illegal drugs, nor could it impose a surcharge on him because of his addiction. However, the hospital is not required to provide services that it does not ordinarily provide, for example, drug treatment (Appendix B to 28 CFR Part 36, Section-by-Section Analysis, §36.302). On the other hand, a vocational training program could refuse to admit a user of illegal drugs, unless the individual had stopped and was participating in or had completed drug treatment.
The protections ADA provides to clients in substance abuse treatment are summarized in Figure 7-1.
In 1998, Congress passed the Workforce Investment Act to improve the workforce, reduce welfare dependency, and increase the employment and earnings of participants (§106 of P.L. 105-220). The Act requires that local "one-stop delivery systems" be established for those looking for work, and it provides Federal funding for these programs.
A major emphasis of the legislation is its "work-first" approach, which strongly encourages the unemployed to find work before requesting training. The Act establishes three tiers of service (§134(c)(1) of P.L. 105-220) available through a "one-stop operator":
The Workforce Investment Act requires States to give recipients of public assistance and other low-income individuals priority in the allocation of intensive and training services (§134(d)(4)(E) of P.L. 105-220). It also recognizes that "low-income individuals with substantial language or cultural barriers, offenders,6 the homeless, and other hard-to-serve populations as defined by the [State]... face multiple barriers to employment." Members of these "special participant populations" may sidestep the voucher system and take part in training "of demonstrated effectiveness" that is offered "by a community-based or other private organization to serve special participant populations that face multiple barriers to employment" (§§134(d)(4)(G)(iv) and (G)(ii)(III) of P.L. 105-220).
The work-first approach may result in additional barriers for clients seeking vocational training. The three-tier system will mean that clients in substance abuse treatment who lack job skills will have to go through the process of assessment and job search (part of the "core services") before they receive any individualized ("intensive") service such as testing, counseling, development of an individualized employment plan, or prevocational services. Only those who are unable to obtain or retain employment after participating in both "core" and "intensive services" will be eligible for "training services." Clients seeking a training program must find one that is directly linked to employment opportunities in the community and must have the skills and qualifications to participate in the program successfully.
Those in substance abuse treatment (or with a history of substance abuse) may not be refused service because of their "disability." The Act explicitly incorporates current Federal antidiscrimination laws, including ADA and the Rehabilitation Act, as well as laws relating to wages, benefits, health, and safety (§188(a) and §181(a) and (b) of P.L. 105-220). However, as stated above, those currently using illegal substances are not protected by ADA. Recipients of public assistance and low-income individuals should be given priority for "intensive" and "training" services.
Clients who participate in services under the Act may be tested for illegal drugs. The Act permits States to test job training participants for the use of controlled substances. States may sanction individuals who test positive by banning them for up to 6 months from the program for a first positive test and for up to 2 years for subsequent positive tests. States that choose to test participants for the use of controlled substances must establish a procedure that ensures "a maximum degree of privacy" (§181(f) of P.L. 105-220).
Two final comments: The Workplace Investment Act is new, and it is not clear how different States will implement it. In addition, counselors should keep in mind that although federally funded programs may dominate this area, there are programs funded by private enterprise or nonprofits that offer more individualized and flexible services.
The Rehabilitation Act and ADA provide limited protection against employment discrimination to individuals who abuse alcohol but who can perform the requisite job duties and do not pose a direct threat to the health, safety, or property of others in the workplace (29 U.S.C. §706(8)(C)(v); 42 U.S.C. §12113(b); 42 U.S.C. §12111(3)). For example, the Acts would protect an alcohol-dependent secretary who binges on weekends, but reports to work sober and performs his job safely and efficiently. However, a truck driver who comes to work inebriated and unable to do her job safely would not be protected. Nor would the employee whose promptness or attendance is erratic, unless the employer tolerates nonalcoholic employees' lateness and absences from work (see Shaw et al., 1994).
ADA (42 U.S.C. §12114(c)) also permits an employer to
Individuals who no longer are engaged in the illegal use of drugs and have completed or are participating in a drug rehabilitation program are offered some protection: The Rehabilitation Act and ADA (29 U.S.C. §706(8)(C)(ii) and 42 U.S.C. §12210(c)) protect employees and prospective employees who
Employers may administer drug testing to ensure that someone who has a history of illegal drug use is no longer using.7 ADA (42 U.S.C. §12114(c)) also permits an employer to
Another Federal law, the Drug-Free Workplace Act (41 U.S.C. §701 et seq.), may also affect clients in recovery. The Act requires employers who receive Federal funding through a grant (including block grant or entitlement grant programs) or who hold Federal contracts to certify they will provide a drug-free workplace. The certification means that affected employers must
Individuals currently engaging in the illegal use of drugs have no protection against discrimination in employment, even if they are "qualified" and do not pose a "direct threat" to others in the workplace (29 U.S.C. §706(8)(C)(i) and 42 U.S.C. §12210(a)).
The protections offered to clients in substance abuse treatment are summarized in Figure 7-1.
Most States have also enacted laws to protect people with disabilities (or "handicaps"). And some States' laws protect persons with substance abuse disorders. Each State's law is different and a treatment provider seeking help under State law should get in touch with the State or local agency charged with enforcing State civil rights laws.
The old adage "an ounce of prevention is worth a pound of cure" is particularly applicable to the area of employment discrimination. It is always easier to persuade an employer to hire an applicant before he has made a decision to reject him. In a variety of ways, counselors of individuals in treatment for substance abuse disorders can help hard-to-employ clients enhance their chances for employment. Counselors should be prepared to help clients, whether directly or through referrals, with the following tasks.
Clients in substance abuse treatment often lack perspective about the world of work. To many, there is a great divide between jobs with status (professional or high-visibility) and jobs that they believe have no status (e.g., fast food, other service industry jobs). Counselors can help clients understand and accept that there are many low-profile jobs that provide livelihood and satisfaction to millions of people. They can help clients develop realistic plans that could require starting at the bottom in order to attain a desirable goal. Such plans could include finding a training program that would lead to a good job. This kind of counseling will be increasingly important as the many aspects of welfare reform are implemented.
There are four ways to deal with this kind of question:
The counselor can help the client sort through the alternatives. Failing to disclose a substance abuse disorder history is rarely an illegal act (unless an application form requires attesting to the accuracy of information). It is for the client to decide how she wants to handle this problem, for she is the one who has to live with the consequences.
Discrimination against individuals with substance abuse disorders continues despite the existence of the Rehabilitation Act and ADA. However, these laws offer those who believe they have suffered discrimination a choice of remedies.
The alternatives listed below must be pursued within certain time limits established by State and Federal laws. An individual who is considering filing a complaint with any one of the agencies mentioned below should consult an attorney at an early date to determine when a complaint must be filed.
Filing a complaint with the Federal agency that funds the program, activity, or service (42 U.S.C. §12133; 29 U.S.C. §794(a); 28 CFR Part 35, Subparts F and G). For example, if the program is educational, it may receive funding from the Department of Education; if it involves health care, it may be funded by the Department of Health and Human Services. Once a complaint is filed, the agency is supposed to investigate and attempt an informal resolution. If a resolution is reached, the agency drafts a compliance agreement that is enforceable by the U.S. Attorney General. Federal agencies are required by ADA and sections 503 and 504 of the Rehabilitation Act to establish an appeals process and to designate the person in charge of compliance.
If no resolution is achieved, the agency issues a "Letter of Findings" that contains findings of fact, conclusions of law, a description of the suggested remedy, and a notice of the complainant's right to sue. A copy is sent to the U.S. Attorney General. The agency must then approach the offending program about negotiating. If the program refuses to negotiate or negotiations are fruitless, the agency refers the matter to the U.S. Attorney General with a recommendation for action.
Advantages: A complaint to the Federal funding agency may get the offending program's attention (and change its decision) because the funding agency has the power to deny future funding to those who violate the law. It is also inexpensive (no lawyer is necessary); however, if the complainant opts to be represented by an attorney, he may be awarded attorneys' fees if he prevails. Disadvantage: Depending upon the kind of complaint and which Federal agency has jurisdiction, this may not be the most expeditious route.
Filing a complaint with the State administrative agency charged with enforcement of the antidiscrimination laws (42 U.S.C. §12201(b)). Such State agencies often have the words "civil rights," "human rights," or "equal opportunity" in their title. Advantage: This route is inexpensive. Disadvantages: Some of these agencies have large backlogs that generally preclude speedy resolution of complaints. Depending upon the State, remedies may be limited.
Filing a lawsuit in State or Federal court. One can file a court case requesting injunctive relief (temporary or permanent) and/or monetary damages. The court has the discretion to appoint a lawyer to represent the plaintiff (42 U.S.C. §§12188 and 2000a-3(a); 28 CFR §36.501).
Disadvantages: Unless one can find a not-for-profit organization that is interested in the case, a lawyer willing to represent the aggrieved party pro bono (free of charge), or a lawyer willing to take the case on contingency or for the attorneys' fees the court can award the side that prevails, this may be an expensive alternative. It can also take a long time. Advantages: The complainant can ask for injunctive relief (a court order requiring the program to change its policy) and/or monetary damages. It may give the complainant a better sense of control over the process. A lawyer may produce results quickly: a lawyer's approach to an offending program can have prompt and salutary effects. No one likes to be sued. It is costly, unpleasant, and often very public. It is often easier to re-examine one's position and settle the case quickly out of court. The advantages and disadvantages of filing a case in State court will depend upon State law, State procedural rules, and the speed with which cases are resolved.
Requesting enforcement action by the U.S. Attorney General, who can file a lawsuit asking for injunctive relief, monetary damages, and civil penalties (42 U.S.C. §12188 and 2000a-3(a); 28 CFR §36.503).
Filing a complaint with the Federal Equal Employment Opportunity Commission (EEOC) (42 U.S.C. §12117) or the State administrative agency charged with enforcement of the antidiscrimination laws (42 U.S.C. §12201(b)). If the EEOC finds reasonable cause to believe that the charge of discrimination is true and it cannot get agreement from the party charged, it can bring a lawsuit against any private entity. If the offending entity is governmental, the EEOC must refer the case to the U.S. Attorney General, who may file a lawsuit. The complainant can intervene in any court case brought by either the EEOC or the Attorney General.
The EEOC or the U.S. Attorney General can also seek immediate relief by filing a case for a preliminary injunction in a Federal court. The court can order injunctive relief, including reinstatement or hiring, back pay, and attorneys' fees (42 U.S.C. §2000e-5).
Advantage: A complaint to the EEOC, the U.S. Department of Justice, or a State or local antidiscrimination agency or State Attorney General is relatively inexpensive because it does not require a lawyer. Disadvantage: Some of these agencies have large backlogs that generally preclude speedy resolution of complaints.
Filing a lawsuit in State or Federal court. After an aggrieved party has filed a complaint with the State administrative agency and/or the EEOC, she can file a lawsuit (42 U.S.C. §2000e-5(f)).
Disadvantage: This may be an expensive alternative and may also take a long time. Advantage: It can get fast results (see section above on discrimination by a program or activity).
Many individuals with substance abuse disorder histories also have criminal records. Most employers are reluctant to hire people with criminal records. Although there are rulings that prohibit employers from asking applicants about arrests that did not result in convictions, there are few protections for ex-offenders who have been convicted of misdemeanors or felonies. As is the case for individuals with substance abuse disorder histories, the best strategy is to prepare for difficulties in advance. See Chapters 3 and 8 for more on this issue.
For individuals in treatment for substance abuse, Federal law provides protection against discrimination by programs, services, and employers. Many States have also adopted laws prohibiting discrimination against "individuals with disabilities" or "handicaps," and some of these statutes also protect those recovering from substance abuse disorders. Some States also offer limited protection to ex-offenders. To learn more about State law--the protections it offers and the available remedies--providers can call the State or local "human rights," "civil rights," or "equal opportunity" agency. Advocacy groups for individuals with disabilities are also a good source of information. Local legal services offices, law school faculties, and bar associations may also have information available or may be able to provide an individual lawyer willing to make a presentation to staff.
In 1996, Congress enacted a major overhaul of welfare called "The Personal Responsibility and Work Opportunity Reconciliation Act." It transformed the Aid to Families With Dependent Children (AFDC) program, which "entitled" needy individuals with dependent children to assistance, into Temporary Assistance for Needy Families (TANF), a program offering limited relief. Unlike AFDC, TANF imposes work requirements on aid recipients, limits the amount of time an adult can receive benefits, and bars benefits to certain categories of persons, including individuals with felony drug convictions. States may screen recipients for alcohol and drug use and sanction those who test positive. TANF promises to have a major impact on clients who are also parents. Also in 1996, as part of the Contract With America Advancement Act, Congress amended the Social Security disability laws to eliminate benefits for any individual whose substance abuse disorder is or would be a contributing factor to an award of Supplemental Security Income (SSI) or Disability Insurance (DI) benefits (§105 of P.L. 104-121). Those receiving SSI or DI benefits are also generally eligible for food stamps and Medicaid; thus, the loss of SSI or DI benefits carries with it the possible loss of these benefits, including support for substance abuse treatment.
Finally, as part of the Adoption and Safe Families Act of 1997, Congress has required the States to shift the focus of child abuse prevention and intervention services from family reunification to children's health, safety, and permanent placement. There is now a 15-month limit on "family reunification services," which are provided when children have been removed from the home and placed in foster care. This limit applies to substance abuse treatment and mental health services; individual, group, or family counseling; and transportation to or from services (42 U.S.C. §675(5), as amended by §§103 and 305 of the Adoption and Safe Families Act of 1997). States must begin proceedings to terminate parental rights when children have been in foster care for 15 of the most recent 22 months (42 U.S.C. §675(5)(C), as amended by §301 of the Adoption and Safe Families Act of 1997).
These three pieces of legislation promise to put great pressure on clients in substance abuse treatment to regain and retain sobriety, find work, and assume responsible parenting, all within a relatively short period of time. The following section provides an overview of these changes and a brief discussion of the practical implications for substance abuse treatment clients.
The Personal Responsibility and Work Opportunity Reconciliation Act (1996) affects clients receiving TANF in the following ways:
The Contract With America Advancement Act of 1996 affects individuals who have been found disabled because of their substance abuse disorder and are receiving SSI or DI benefits.
Congress has established a series of programs to fund and support States' efforts to help families in crisis, including family preservation, family reunification, foster care, and adoption assistance.8 These programs require States to adopt policies, timetables, and restrictions that may have the following results:
Parents who are unable to achieve sobriety after a year of treatment will be at greater risk of losing their parental rights as States implement the 15-month time limit on family preservation services and enforce the requirements regarding prompt determinations about children's permanent placement.
There are some new restrictions on benefits for immigrants. A lawful immigrant may or may not be eligible for benefits, depending on a variety of factors, including her immigrant status, the kind of benefit the immigrant applies for (e.g., TANF, SSI, DI, Medicaid, food stamps), when the immigrant arrived in this country, how long she has been here, her age, and other facts about her personal history (42 U.S.C. §602(a)(33); 42 U.S.C. §2115).
The changes in the rules governing public assistance, disability benefits, and immigrants are fairly new, and States have some choice in the way they implement them. To learn more about how the State is implementing these laws, programs can consult their agency's counsel, if one exists, or a board member who is an attorney. Or, they can seek help from a lawyer familiar with the State law and regulations in this area who works for the State's Department of Social or Human Services, the State Attorney General's office, the Single State Agency, the local Legal Aid Society or Legal Services office, a family law clinic (perhaps at a law school), or a private practice specializing in family law. Often bar associations have lists of attorneys who work pro bono on issues such as these.
The combined effects of the new welfare reform requirements, the amendments to the disability laws, and the changes in the child welfare laws threaten to put clients who rely on public assistance or who are involved with a child protective services (CPS) agency under tremendous pressure. Clients will no longer receive disability benefits (SSI or DI) based on their substance abuse problems and may lose eligibility for food stamps and Medicaid as well. Clients with children may face reduction or elimination of their benefits if they fail to achieve and maintain sobriety, comply with work requirements, or enter the workforce within 5 years. Clients whose benefits are reduced or eliminated may have difficulty providing their children with the requisite level of food, clothing, shelter, and medical care. At the same time, clients involved with a CPS agency may be required to meet additional requirements within a limited time period.
Those with substance abuse problems, minimal work experience, and a lack of parenting skills can feel overwhelmed by these growing demands. Maintaining sobriety, by itself, is a difficult achievement for many. If they have to comply with work requirements and assume new parenting responsibilities, they may see all of this as impossible. For some, the response will be denial of the reality that "the system" has changed. Others may be overcome by hopelessness and be inclined to give up. Others will relapse.
As welfare reform, amendments to the disability laws, and changes in child protection laws are implemented, counselors will see increasingly stressed clients in need of supportive counseling and a web of support services. In these changed times, however, support will not suffice. If a client in substance abuse treatment is to emerge with a source of income and his family intact, the counselor must combine support with a firmness rooted in the understanding that the rules in this area have changed and become less forgiving. The challenge for counselors is to continue supporting clients while conveying to them the urgency of their attaining or maintaining sobriety and finding gainful employment.
Programs providing treatment or VR services to individuals with substance abuse disorders frequently need to communicate with individuals and organizations as they gather information, refer clients to services the program does not provide, and coordinate care with other human service providers. This section outlines the laws protecting client confidentiality and examines how staff can protect clients' privacy while providing appropriate treatment or VR services.
Information about individuals applying for or receiving substance abuse prevention, screening, assessment, or treatment services is subject to a Federal statute and regulations that guarantee confidentiality (42 U.S.C. §290dd-2; 42 CFR, Part 2). State laws also protect information about individuals' health or mental health status or treatment, as well as information about certain diseases, and may restrict disclosure of information about substance abuse.9 The Federal law, however, is generally more restrictive than State laws. Federal law preempts less restrictive State laws, but does not preclude enforcement of State law that is more restrictive.
This section describes what the Federal law and regulations require and examines their impact on substance abuse treatment programs. It details the rules regarding the use of consent forms to get a client's permission to release information and examines how consent forms may be used to refer a client to or coordinate a client's care with another service provider. Situations that commonly arise when a client in substance abuse treatment is receiving VR services at the program or elsewhere are reviewed, including how a program can properly gather information about a client from collateral sources and how a program can communicate with vocational programs or clients' employers in a variety of circumstances. Also discussed are some exceptions in the Federal confidentiality rules, the notice clients must receive about the confidentiality regulations, clients' right to review their own records, and security of records.
A Federal law and a set of regulations guarantee the strict confidentiality of information about all persons who seek or receive alcohol and drug abuse prevention, assessment, and treatment services. The legal citation for the laws and regulations is 42 U.S.C. §290dd-2 and 42 CFR Part 2. (Citations in the form "§2..." refer to specific sections of 42 CFR Part 2.)
The Federal law and regulations are designed to protect clients' privacy rights in order to attract people into treatment. The regulations tightly restrict communications about substance-abusing clients; unlike either the doctor-patient or the attorney-client privilege, the substance abuse treatment provider is prohibited from disclosing even the client's name. A counselor may not acknowledge to an outside party that a particular client is a participant in the program. Violating the regulations is punishable by a fine of up to $500 for a first offense or up to $5,000 for each subsequent offense (§2.4).
The Federal rules apply to any program that specializes, in whole or in part, in providing treatment, counseling, or assessment and referral services for people with alcohol or drug problems (42 CFR. § 2.12(e)). Although the Federal regulations apply only to programs that receive Federal assistance, this includes indirect forms of Federal aid such as tax-exempt status, or State or local government funding coming (in whole or in part) from the Federal government.
Whether the Federal regulations apply to a particular program depends on the kinds of services the program offers, not the label the program chooses. Calling itself a "prevention program" or "outreach program" or "screening program" does not absolve a program from adhering to the confidentiality rules.
The primary aim of confidentiality rules is to allow clients (and not the provider) to determine when and to whom information will be disclosed. Some may view these laws and regulations as an irritation or a barrier to achieving program goals. Most of the nettlesome problems that can crop up under the Federal law and regulations can be avoided through planning ahead. Familiarity with the rules will ease communication. It can also reduce the confidentiality-related conflicts among program, client, and outside agency or person to a few relatively rare situations.
The Federal confidentiality law and regulations protect any information about a client who has applied for or received any alcohol or drug abuse-related service from a program that is covered under the law. Services applied for or received can include screening, referral, assessment, diagnosis, individual counseling, group counseling, or treatment. The regulations govern from the time the client applies for or receives services or the program first conducts an assessment or begins to counsel the client. The restrictions on disclosure apply to any information that would identify the client as an individual with a substance abuse disorder, either directly or by implication. The rule also applies to former clients or patients. It applies whether or not the person making an inquiry about the client already has the information, has other ways of getting it, has some form of official status, is authorized by State law, or comes armed with a subpoena or search warrant.
Although the Federal law and regulations protect information about clients, they do contain exceptions. The most commonly used exception is the client's written consent. The Federal regulations' requirements regarding consent are strict, somewhat unusual, and must be carefully followed. A proper consent form must be in writing and must contain each of the items contained in §2.31:
A general medical release form, or any consent form that does not contain all the elements listed above, is not acceptable. (See sample consent form in Figure 7-3.) Most disclosures of information about a client in substance abuse treatment are permissible if the client has signed a valid consent form that has not expired or been revoked.10
Specific aspects of the client consent procedure are discussed further below: the purpose of the disclosure and how much and what kind of information will be disclosed; the client's right to revoke consent; and the expiration of consent forms. Two other issues are also considered: the required notice to the recipient that the information may not be disclosed and the effect of a signed consent form.
These two items are closely related. All disclosures, and especially those made pursuant to a consent form, must be limited to information that is necessary to accomplish the need or purpose for the disclosure (§2.13(a)). It would be improper to disclose everything in a client's file if the person making the inquiry only needs one specific piece of information.
A key step in completing the consent form is specifying the purpose or need for the communication of information. Once the purpose has been identified, it is easier to determine how much and what kind of information will be disclosed, tailoring it to what is essential to accomplish that particular purpose or need.
Suppose, for example, that a counselor wants to refer a client to a vocational training program to improve his work-related skills. The counselor perhaps simply wants to call the training program to set up an appointment for the client. Making this kind of call from a substance abuse treatment program will almost always mean disclosing, albeit indirectly, that the client is in substance abuse treatment. Therefore, the client must sign a consent form. In this instance, the purpose of the disclosure would be "to set up an appointment with the Big Tree Training Program." The disclosure would then be limited to a statement that "Sam O'Neill (the client) is in treatment at a substance abuse treatment program." No other information about Sam O'Neill would be released.
On the other hand, if the treatment provider and the vocational training program want to coordinate care for the client, they will need to communicate over a longer period of time and the counselor will need to release more detailed information. In this case, the "purpose of the disclosure" would be "coordination of services for Sam O'Neill" and "how much and what kind of information will be disclosed" might be "treatment status, treatment issues, and progress in treatment."
If the program is treating a patient who is on probation at work and whose future employment is contingent on treatment, the "purpose of disclosure" might be "to assist the patient to comply with the employer's mandates" or "to supply periodic reports about attendance" and "how much and what kind of information will be disclosed" might be "attendance" or "progress in treatment." Note that the kinds of information that will be disclosed to a provider with whom a program is coordinating the client's care will be quite different from the kind of information a program will disclose to an employer. The program might well share some clinical information about a client with a vocational training provider if that would assist in coordinating services. Disclosure to an employer should be limited to a brief statement about the client's attendance or progress in treatment. Disclosure of detailed clinical information to an employer would, in most circumstances, be inappropriate.
The Federal regulations permit the client to revoke consent at any time, and the consent form must include a statement to this effect. Revocation need not be in writing. If a program has already made a disclosure prior to the revocation, the program has acted in reliance on the consent and is not required to try to retrieve the information it has already disclosed.11 If clients have been mandated into treatment by the criminal justice system as a condition of probation or parole or of any proceedings against them, they should sign a "criminal justice system consent form." This form prohibits the client from revoking consent to disclosures to the criminal justice mandating agency (§2.35). For a full explanation of the differences between this and the usual consent requirements, see TIP 25, Substance Abuse Treatment and Domestic Violence (CSAT, 1997c), pages 104-105.
The Federal rules require that the consent form contain a date, event, or condition on which it will expire if not previously revoked. A consent form must last "no longer than reasonably necessary to serve the purpose for which it is given" (§2.31(a)(9)). If the purpose of the disclosure can be expected to be accomplished in 5 or 10 days, it is better to fill in that amount of time rather than a longer period. It is best to individualize the ending date that the consent form is in effect rather than have all consent forms within an agency expire within 60 or 90 days. When uniform expiration dates are used, agencies can find themselves in a situation where there is a need for a disclosure, but the client's consent form has expired. This means at the least that the client must come to the agency again to sign a consent form. At worst, the client has left or is unavailable (e.g., hospitalized), and the agency will not be able to make the disclosure.
The consent form does not need to contain a specific expiration date but may instead specify an event or condition. In the example discussed above, if a counselor is calling a training program to set up an appointment for the client, the consent form could provide that it will expire after the client "has had his first appointment at the Big Tree program." On the other hand, if the counselor wants to coordinate services with the training program, it might be appropriate to have the consent form expire "when services by either agency end." A consent form permitting disclosures to an employer might expire at the end of the client's probationary period. However, a program that continues to provide services after a client has revoked a consent authorizing disclosure to a third-party payor does so at its own financial risk.
Somewhat different rules may apply when a client comes for assessment or treatment as an official condition of probation, sentence, dismissal of charges, release from detention, or other disposition of a criminal justice proceeding. A consent form (or court order) is still required before a program can disclose information about a client who is the subject of a referral from the criminal justice system (CJS). However, the rules concerning the length of time that a consent is valid and the process for revoking the consent are different (§ 2.35). Specifically, the regulations require that the following factors be considered in determining how long a criminal justice consent will remain in effect:
These rules allow programs to draft the consent form to expire "when there is a substantial change in the client's justice system status." A substantial change in justice status occurs whenever the client moves from one phase of the criminal justice system to the next. For example, for a client on probation, a change in status would occur when the probation ends, either by successful completion or revocation. Until one of those events occurs, the program could provide periodic reports to the client's probation officer and could even testify at a probation revocation hearing, since no change in status would occur until after that hearing.
The Federal regulations also permit the program to draft the consent form so that it cannot be revoked until a specified date or condition occurs. The regulations permit the CJS consent form to be irrevocable so that a client who has agreed to enter treatment in lieu of prosecution or punishment cannot then prevent the court, probation department, or other agency from monitoring her progress. Note that although a CJS consent may be made irrevocable for a specified period of time, that time period must end no later than the final disposition of the juvenile or criminal justice proceeding. Thereafter, the client may freely revoke consent.
A minor12 must always sign the consent form in order for a program to release information, even to his parent or guardian. The program must get the parent's signature in addition to the minor's signature only if the program is required by State law to obtain parental permission before providing treatment to minors (§2.14). ("Parent" includes parent, guardian, or other person legally responsible for the minor.)
In other words, if State law does not require the program to get parental consent in order to provide services to a minor, then parental consent is not required to make disclosures (§2.14(b)). If State law requires parental consent to provide services to a minor, then parental consent is required to make any disclosures. The program must always obtain the minor's consent for disclosures and cannot rely on the parent's signature alone. Substance abuse treatment programs should consult with their Single State Agency or a local lawyer to determine whether they need parental consent to provide services to minors. The Federal confidentiality regulations do permit the director of a substance abuse treatment program to communicate with a minor's parents without the minor's consent, when
Thus, if a minor applies for services in a State where parental consent is required to provide services, but the minor refuses to consent to the program's notifying her parents or guardian, the regulations permit the program to contact a parent without the minor's consent, only if those conditions are met. Otherwise the program must explain to the minor that while she has the right to refuse to consent to any communication with a parent, the program can provide no services without such communication and parental consent (§2.14(d)). The regulations add a warning, however, that such action might violate a State or local law (§2.14(b)).
Once the consent form has been properly completed, there remains one last requirement. Any disclosure made with client consent must be accompanied by a written statement that the information disclosed is protected by Federal law and that the person receiving the information cannot make any further disclosure of it unless permitted by the regulations (§2.32). This statement, not the consent form itself, should be delivered and explained to the recipient at the time of disclosure or earlier.
The prohibition on redisclosure is clear and strict. Those who receive the notice are prohibited from rereleasing information except as permitted by the regulations. (Of course, a client may sign a consent form authorizing such a redisclosure.)
The fact that a client has signed a proper consent form authorizing the release of information does not require a program to make the proposed disclosure, unless the program has also received a subpoena or court order (§§ 2.3(b); 2.61(a)(b)). The program's only obligation is to refuse to honor a consent that is expired, deficient, or otherwise known to be revoked, false, or invalid (§2.31(c)).
In most cases, the decision whether or not to make a disclosure when a client has signed a consent form is within the discretion of the program, unless State law requires or prohibits disclosure once consent is given. In general, it is best to follow this rule: disclose only what is necessary, for only as long as is necessary, keeping in mind the purpose of the communication.
Sharing Information: Strategies for Dealing With Common Situations Requiring Communications With Others
This section discusses the kinds of questions that affect the operations of programs offering vocational services, either directly or through referral--bearing in mind the rules regarding consent discussed above. These questions include
When a client is referred to a program by an employer, a training program, or a physician, the program may, at some point in the intake and assessment process, need to ask the person or organization making the referral some questions. Or, a program may want to communicate with an outside person or organization to verify information about a client. Making inquiries of employers, schools, training programs, family members, doctors, and other health care entities might, at first glance, seem to pose no risk to a client's right to confidentiality. But it does.
When a program asks a family member, employer, training program, doctor, or mental health professional to supply information about a client or verify information it has obtained from a client, it is making a patient-identifying disclosure that the client has sought its services. In other words, when program staff seek information from other sources, they are letting those sources know that the client has asked for substance abuse treatment services. The Federal regulations generally prohibit this kind of disclosure unless the client consents, even if the person or organization already knows the client is in treatment.
The easiest way to proceed in this situation is to get the client's consent to contact the employer, training program, family member, school, health care facility, and so on. Or, the program could ask the client to sign a consent form that permits it to make a disclosure for purposes of seeking information from collateral sources to any one of a number of entities or persons listed on the consent form. Note that this combination form must still include "the name or title of the individual or the name of the organization" for each collateral source the program may contact. Whichever method the program chooses, it must use the consent form required by the regulations, not a general medical release form.
As discussed in the first part of this chapter, the Rehabilitation Act and ADA generally protect individuals in substance abuse treatment when they seek vocational or training services from a provider covered by either Act. Nevertheless, communications with a vocational or training program must comply with the Federal confidentiality rules. For example, if a program refers a client to a vocational program by making an appointment for her, it would need to get the client to sign a consent form. Figure 7-4 sets out the different ways a referral can be handled.
How the program communicates with a vocational or training program depends in part on whether the vocational or training services are part of the substance abuse treatment program or offered by a separate agency.
The Federal regulations permit some information to be disclosed to staff within the same program:
The restrictions on disclosure in these regulations do not apply to communications of information between or among personnel having a need for the information in connection with their duties that arise out of the provision of diagnosis, treatment, or referral for treatment of alcohol or drug abuse if the communications are (i) within a program or (ii) between a program and an entity that has direct administrative control over that program (§2.12(c)(3)).
In other words, staff members who have access to information about clients because they work for or administratively direct the program--including full- or part-time employees and unpaid volunteers--may consult among themselves or otherwise share information if their substance abuse treatment work so requires (§2.12(c)(3)).
This is the second most commonly invoked exception to the Federal confidentiality rules (after consent). While the exception may apply to an in-house vocational or training program, two cautions must be noted. First, the exception does not permit unfettered communications among staff within a substance abuse treatment program. Only staff members "having a need for the information in connection with their duties that arise out of the provision of [substance abuse treatment services]" may receive information about the client without consent. Second, once information about a client is communicated to an in-house vocational or training program, information about that client that is held by the vocational or training program becomes subject to the confidentiality rules. Thus, the vocational or training program staff would have to learn and agree to abide by the Federal confidentiality rules.
In order for a substance abuse treatment program to communicate with a vocational/training program operated by an outside agency, it must have a valid consent form signed by the client. As noted above, the form must satisfy all the requirements of §2.31; it must include a statement of the need or purpose of the communication and the kind and amount of information to be disclosed. If the communication is to be ongoing, it is appropriate to have the consent form expire "when services by either agency end."
When a substance abuse treatment program invites an outside agency to provide vocational or training services on program premises, it may communicate information about a client to that agency and its staff only after the client signs a valid consent form. The fact that the staff of an agency operating on program premises presumably knows that the clients it is serving are in substance abuse treatment does not mean that the program can dispense with the consent requirements. Moreover, the substance abuse treatment program must take steps to protect the confidentiality of clients who are not using the onsite vocational or training services. Nonparticipating clients should receive notice about when such "outsiders" will be at the program and where they will be. The vocational or training program should occupy space at the program that can be avoided by clients not receiving those services so that they can protect their own identities.
As discussed in the first part of this chapter, the Rehabilitation Act and ADA offer limited protection against employment discrimination to individuals participating in substance abuse treatment. Whether and how the program should communicate with an employer depends on a variety of factors, including whether the employer referred the employee to treatment, whether the employer is likely to be understanding or hostile when he learns that an employee has sought substance abuse treatment, and what kind of job the employee holds.
When an employer refers a client to treatment as a condition of keeping his job, the employer may well require periodic reports from the substance abuse treatment program about the employee's attendance and/or progress in treatment. Although the employer clearly knows in this situation that the employee is in treatment, a consent form is necessary for the program to communicate with the employer. As mentioned above, the program should limit the kind and amount of information it reports to the employer; with few exceptions, employers do not need detailed clinical information.
When an employed client is self-referred or referred by someone other than her employer, there may be little or no reason for the program to communicate with the employer. However, circumstances may arise that appear to require communication. For example, suppose that a counselor believes that a client needs intensive treatment, available only in another county or at a residential facility? Someone must notify the client's employer that she will be gone for a period of time. The counselor and the program should consult the client about how she wants to handle this situation. The client should gather preliminary information, such as the following:
If the client does not need to involve a health care provider to get medical leave, the safest course might be for her to ask for medical leave herself or take vacation time. If a health care provider must certify that the client needs medical leave, what are the likely repercussions if the employer learns she is entering a program for treatment of a substance abuse disorder?
An astute counselor can help the employed client navigate the sometimes perilous path leading to treatment and back to employment. It is critical for the counselor and the program to listen to a client's concerns about her employer's attitude. Remember that protections for those recovering from a substance abuse disorder are limited, and enforcement of those protections is uncertain and can be expensive. If a program communicates with an employer without a client's consent, and in doing so directly or indirectly reveals that the client has a substance abuse disorder, the program may find itself facing an unpleasant lawsuit if the client loses her job.
Communicating with an employer or vocational program when a client's relapse may pose a threat to others
Does a program have a "duty to warn" an employer or training program when it knows that a client it is treating has relapsed? When would that "duty" arise? Even when no duty exists, should a substance abuse treatment program warn those who may be put at risk about a client's relapse? How can others be warned without violating the Federal confidentiality regulations?
Successful substance abuse treatment depends on the willingness of clients to expose powerful feelings and shameful things about themselves to program staff. The news that the program has, without a client's consent, "warned" a training program or employer or someone else that a client has relapsed will spread quickly among the client population. It may have the effect of destroying clients' trust in the program and its staff. Any counselor or program considering "warning" someone of a client's relapse without the client's consent should carefully analyze whether there is, in fact, a "duty to warn" and whether it is possible to persuade the client to discharge this responsibility himself or consent to the program's doing so.
Is there a duty? The answer is a matter of State law. This question does not usually arise in the employment or vocational training context. The "duty to warn" issue usually arises when a client makes a verbal threat to cause physical harm to himself or another person. In such cases, in order for a "duty to warn" to exist, a counselor generally must be able to identify a particular potential victim. For example, if a client makes a statement that he intends to shoot his boss, and the counselor believes he means it, then the counselor would have a duty to warn either the potential victim or law enforcement.13
There are obvious differences between the "verbal threat" and the threat that a relapse may present: because the client is not intending to hurt anyone in the training program or at work, it is not clear that his going to the training program or to work inebriated or "high" will actually result in physical harm to another. There are circumstances when individuals are in safety-sensitive positions, such as pilots, medical personnel, and child care workers, where harm to others may be an issue. However, there are always workers in such jobs whose performance seems unaffected by substance use. And, unlike the verbal threat scenario, the potential consequences are not so clear.
There appears to be no consensus that substance abuse treatment programs have a duty to warn an employer or training program of a client's relapse. The program has to make a judgment in a situation where it has conflicting moral obligations: On the one hand, no program would want to prompt a training program or employer to dismiss its client. On the other hand, it would be tragic if the client's condition resulted in death or injury to someone. How should treatment providers address this dilemma?
The process of reaching a decision concerning whether to warn an employer or training program about a client's relapse will be easier if programs develop a protocol about "duty to warn" cases in this context. A protocol gives staff guidelines to follow in making a decision. The protocol should require the client's primary counselor to consult with her clinical supervisor (and perhaps the program director) and should include the following steps:
Safety sensitivity. The first question to consider is whether the client has the kind of job in which a relapse would be a problem. For example, if the client is a file clerk, being inebriated or "high" on the job would not pose a danger to others' physical welfare. If, on the other hand, the client works as a truck driver or on a fast-paced assembly line, going to work inebriated or "high" might well pose a danger to others.
The seriousness of the relapse. The program should determine whether the client's relapse and resulting substance use pattern is a threat to himself or others on the job or at the training program. If the client binges on weekends, for example, he may not pose a threat to others at the workplace even if he holds a safety-sensitive position.
The client's employment status. If the client has relapsed and is not keeping appointments at the program, it may also be that the client has also stopped going to work. The program could try to find out whether the client is still employed, so long as it does not disclose that the client has a substance abuse disorder or is in treatment.
If the threat is serious, determine if there is a way to avoid disclosure about the client's substance abuse disorder.
Will the client take responsibility? The program should make an effort to convince the client to take steps to avoid putting others at risk. This may require the client to call in sick during a relapse or request medical leave or temporary reassignment to a job that is not safety-sensitive.
Can the program give a warning without disclosing the client's substance abuse disorder? For a program that is part of a larger non-substance- abuse treatment facility, this can be accomplished by giving a warning in the larger facility's name. For example, a counselor employed by an alcohol treatment program that is part of a general hospital could phone the employer in question, identify herself as "a counselor at the New City General Hospital," and state that John Smith (the client) is not fit to work. (The counselor may not mention that the employee has a substance abuse problem or that he is impaired by drugs or alcohol.) This kind of warning would convey the vital information without identifying the client as someone in substance abuse treatment. Counselors at free-standing alcohol or drug programs cannot give the name of the program but could give a warning to the employer without identifying themselves (often called an "anonymous" warning). (This "non-patient-identifying disclosure" exception is discussed more fully below.)
Determine how the program should warn an employer without violating the Federal confidentiality rules
If the threat is serious and it is not possible to avoid a disclosure about the client's substance abuse disorder, determine how the program should warn an employer without violating the Federal confidentiality rules. Is there a consent form? For a client in a safety-sensitive position, the program should have on hand a consent form permitting it to inform the employer or training program about a relapse that poses a threat to others. This may be easier to obtain from a client who has been referred by an employer or whose vocational program knows he is in substance abuse treatment. Even then, the client can revoke his consent.
If the client will not give consent, the program can seek a court order authorizing the disclosure. The program should try to educate the court about the "court order" requirements of the Federal confidentiality regulations (which are discussed below in detail).
A program that decides to warn an employer or training program should document the factors that impelled its decision. If the decision is later questioned, notes made at the time showing that the program made a good-faith effort to determine the need to make the disclosure, to persuade the client to take responsibility himself, and to determine an appropriate way to issue the warning could prove invaluable.
The program's "duty to warn" protocol should be supplemented with ongoing training and discussions to assist staff in sorting out what should be done in any particular situation. Programs should also keep abreast of developments in this area. The circumstances under which the law imposes a "duty to warn" or "duty to notify" are changing, as States adopt new statutes and their courts apply statutes to new situations. Although a duty to warn in the vocational training and employment contexts does not fit neatly into the classic model, developments in other areas of liability law may foreshadow shifts that will result in imposition of liability in this area, too. In some States, for example, bar owners and even hosts at private parties have been held liable for serving alcohol to inebriated customers or guests who injured or killed other motorists on their way home. In these cases, the bar owner's or host's knowledge that a customer or guest was drunk and about to drive his car is viewed as imposing a duty to protect innocent third parties. On the other hand, in some cases, courts have refused to impose liability on alcohol treatment programs that failed to get clients to stop drinking or driving. How any individual case will be decided will depend on the particular facts of the case (how egregious it appears in hindsight that the program failed to warn someone), what kind of damage was caused by the relapsed client, and the legal precedents in the State in which the case is brought.
The Federal confidentiality regulations' general rule prohibiting disclosure of patient-identifying information has a number of exceptions. Some of these exceptions have already been mentioned: consent, disclosures that do not identify someone as a client in substance abuse treatment, communications within a program, and disclosures authorized by a special court. The rules governing these exceptions are described below. Other exceptions are listed at the end of this section, with references to other TIPs where they are explained more fully.
The Federal regulations permit programs to disclose information about a client if the program reveals no patient-identifying information. A program may only disclose information about clients if it does not identify them as alcohol or drug abusers or support anyone else's identification of them as such.
Obviously, a program can report aggregate data about its population (summing up information that gives an overview of the clients served in the program) or some portion of its populations. Thus, for example, a program could tell the newspaper that in the last 6 months it screened 43 clients, 10 female and 33 male. Or, as mentioned above, a program can communicate information about a client in a way that does not reveal the client's status as a substance abuse treatment patient (§2.12(a)(i)). For example, a program that provides services to clients with other problems or illnesses as well as a substance abuse disorder may disclose information about a particular client as long as the fact that the client has a substance abuse problem is not revealed. Or, a program that is part of a general hospital could have a counselor call a training program to inform them that the client may be unable to perform adequately. However, the counselor may not disclose that the client has a substance abuse problem or is a client of the substance abuse treatment program.
Programs that provide only alcohol or drug services cannot disclose information that identifies a client under this exception, since letting someone know a counselor is calling from the "Capital City Drug Program" will automatically identify the client as someone who received services from the program. However, a free-standing program can sometimes make "anonymous" disclosures, that is, disclosures that do not mention the name of the program or otherwise reveal the client's status as an alcohol or drug abuser.
A State or Federal court may issue an order that will permit a program to make a disclosure about a client that would otherwise be forbidden. A court may issue one of these authorizing orders, however, only after it follows certain special procedures and makes particular determinations required by the regulations. A subpoena, search warrant, or arrest warrant, even when signed by a judge, is not sufficient, standing alone, to require or even to permit a program to disclose information (§2.61).14
Before a court can issue a court order authorizing a disclosure about a client, the client about whom a disclosure will be made must be given notice of the application for the order and some opportunity to make an oral or written statement to the court. If the program is not the party requesting the order, then the program, too, must be given notice and an opportunity to be heard.15 Generally, the application and any court order must use fictitious names for any known client, and all court proceedings in connection with the application must remain confidential unless the client requests otherwise (§§2.64(a), (b), 2.65, 2.66).
Before issuing an authorizing order, the court must find that there is "good cause" for the disclosure. A court can find "good cause" only if it determines that the public interest and the need for disclosure outweigh any negative effect that the disclosure will have on the patient, or the doctor-patient or counselor-patient relationship, and the effectiveness of the program's treatment services. Before it may issue an order, the court must also find that other ways of obtaining the information are not available or would be ineffective (§2.64(d)).16 The judge may examine the records before making a decision (§2.64(c)).
There are also limits on the scope of the disclosure that a court may authorize, even when it finds good cause. The disclosure must be limited to information essential to fulfill the purpose of the order, and it must be restricted to those persons who need the information for that purpose. The court should also take any other steps that are necessary to protect the client's confidentiality, including sealing court records from public scrutiny (§ 2.64(e)).
The court may order disclosure of "confidential communications" by a client to the program only if the disclosure
If a program routinely needs to share certain information with an outside agency that provides services to the program, it can enter into what is known as a Qualified Service Organization Agreement (QSOA).17
A program may make disclosures to public or private medical personnel "who have a need for information about a patient for the purpose of treating a condition which poses an immediate threat to the health" of the patient or any other individual. The regulations define "medical emergency" as a situation that poses an immediate threat to health and requires immediate medical intervention (§2.51).18
The confidentiality regulations also permit programs to disclose patient-identifying information to researchers, auditors, and evaluators without patient consent, provided certain safeguards are met (§2.52, 2.53).19
When a client has committed or threatens to commit a crime on program premises or against program personnel, the confidentiality regulations permit the program to report the crime to a law enforcement agency or to seek its assistance. The program can disclose the circumstances of the incident, including the suspect's name, address, last known whereabouts, and status as a patient at the program (§2.12(c)(5)).20
The Federal confidentiality regulations permit programs to comply with State laws that require the reporting of child abuse and neglect. While many State statutes are similar, each has different rules about what kinds of conditions must be reported, who must report, and when and how reports must be made. This exception to the general rule prohibiting disclosure of any information about a client applies only to initial reports of child abuse or neglect. Programs may not respond to followup requests for information or subpoenas for additional information, even if the records are sought for use in civil or criminal proceedings resulting from the program's initial report, unless the client consents or the appropriate court issues an order under subpart E of the regulations.21
The Federal confidentiality regulations require programs to notify clients of their right to confidentiality and to give them a written summary of the regulations' requirements. The notice and summary should be handed to clients when they begin participating in the program or soon thereafter (§2.22(a)). The regulations contain a sample notice.
Programs can use their own judgment to decide when to permit clients to view or obtain copies of their records, unless State law grants patients the right of access to records. The Federal regulations do not require programs to obtain written consent from patients before permitting them to see their own records.
Security of records
The Federal regulations require programs to keep written records in a secure room, a locked file cabinet, a safe, or other similar container. The program should establish written procedures that regulate access to and use of clients' records. Either the program director or a single staff person should be designated to process inquiries and requests for information (§2.16).
The push toward computerization of medical and treatment records will complicate the problem of keeping sensitive information private. Currently, there is protection afforded by the cumbersome and inefficient way many, if not most, medical, mental health, and social service records are stored (on paper) and make their way from one provider to another. When records are stored in computers, retrieval can be far more efficient. Computerized records allow anyone with a disk and access to the computer in which the information is stored to instantly copy and carry away vast amounts of information without anyone's knowledge. Modems that allow communication about patients among different components of a managed care network extend the possibility of unauthorized access to anyone with a modem, the password(s), and the necessary software. The ease with which computerized information can be accessed can lead to "casual gossip" about a client, particularly one of importance in a community, making privacy difficult to preserve.22
The legal and ethical issues that affect clients and staff of programs providing VR services are complex and interrelated. Welfare reform has reduced the support system upon which many clients relied and given greater urgency to programs' efforts to help clients enter the world of work. Federal and State laws offer some protection to those clients as they participate in training and seek employment. As programs help clients deal with the new welfare rules and find training and employment, they must keep in mind the Federal confidentiality rules, which affect every communication programs make about clients to welfare agencies, vocational training programs, employers, and others.
1 For a discussion of how these laws apply to persons living with HIV/AIDS, see the TIP, Substance Abuse Treatment for Persons With HIV/AIDS (CSAT, 2000b). 2 Rehabilitation Act and key implementing regulations: 29 U.S.C. §793 and 29 CFR Part 1630; §794(a), (b)(1), (b)(3)(A), and 45 CFR Part 84; Americans with Disabilities Act and key implementing regulations: 42 U.S.C. §§12111(2) and (5) and 12112 and 28 CFR Part 35, Subpart C, and 29 CFR Part 1630. 3 Rehabilitation Act and key implementing regulations: 29 U.S.C. §794 and 45 CFR Part 84; Americans with Disabilities Act and key implementing regulations: 42 U.S.C. §12182(b)(1)(A), 42 U.S.C. §12182(b)(2), and 28 CFR Part 35 and Part 36. 4 42 U.S.C. §12102(2), 29 U.S.C. §706(8)(A), and, e.g., 28 CFR §§35.104 and 36.104. 5 Supplemental Information 28 CFR Part 35, Section-by-Section Analysis, §35.105 and Appendix B to 28 CFR Part 36, Section-by-Section Analysis, §36.104. 6 The Act defines "offender" as "any adult or juvenile (A) who or has been subject to any stage of the criminal justice process, for whom services under this Act may be beneficial; or (B) who requires assistance in overcoming artificial barriers to employment resulting from a record of arrest or conviction" (§101(27) of P.L. 105-220). 7 29 U.S.C. §706(8)(C)(ii), 42 U.S.C. §12210(b), 28 CFR §36.209(c), and 28 CFR §35.131(c). 8 For a more detailed description of these changes, see the TIP, Substance Abuse Treatment for Persons With Child Abuse and Neglect Issues (CSAT, 2000a). 9 For a discussion of these kinds of State confidentiality laws, see TIP 24, A Guide to Substance Abuse Services for Primary Care Clinicians (CSAT, 1997a), Appendix B. For a discussion of confidentiality issues for those with HIV/AIDS, see the TIP, Substance Abuse Treatment for Persons With HIV/AIDS (CSAT, 2000b). 10 However, no information that is obtained from a program (even if the client consents) may be used in a criminal investigation or prosecution of the client unless a court order has been issued under the special circumstances set forth in §2.65 (42 U.S.C. §§290dd-2 and 42 CFR §2.12(a), (d)). 11 The regulations state that "acting in reliance" includes the provision of services while relying on the consent form to permit disclosures to a third-party payor. (Third-party payors are health insurance companies, Medicaid, or any party that pays the bills other than the patient's family or the treatment agency.) Thus, a program can bill the third party-payor for past services provided before the consent was revoked. 12 Minors are those individuals, under a certain age, who do not have all the rights and privileges of adults. The specific age varies according to State law and also according to the "right" or "privilege" at issue--e.g., serving in the Army, drinking. 13 For a discussion of "duty to warn" when a client threatens violent harm to another person, see TIP 19, Detoxification from Alcohol and Other Drugs (CSAT, 1995[b]), Appendix F, Legal and Ethical Issues for Detoxification Programs, pp. 82, 84-85. 14 For an explanation about how to deal with search and arrest warrants, see TIP 19, Detoxification from Alcohol and Other Drugs (CSAT, 1995[b]), Appendix F, Legal and Ethical Issues for Detoxification Programs, pp. 84-85. For advice about dealing with subpoenas, lawyers, and law enforcement, see TIP 24, A Guide to Substance Abuse Services for Primary Care Physicians (CSAT, 1997[a]), Appendix B, Legal and Ethical Issues, pp. 111-112. 15 If the information is being sought to investigate or prosecute a patient for a crime, only the program need be notified (§ 2.65). If the information is sought to investigate or prosecute the program, no prior notice at all is required (§ 2.66). 16 If the purpose of seeking the court order is to obtain authorization to disclose information in order to investigate or prosecute a patient for a crime, the court must also find that (1) the crime involved is extremely serious, such as an act causing or threatening to cause death or serious injury; (2) the records sought are likely to contain information of significance to the investigation or prosecution; (3) there is no other practical way to obtain the information; and (4) the public interest in disclosure outweighs any actual or potential harm to the patient, the doctor-patient relationship, and the ability of the program to provide services to other patients. When law enforcement personnel seek the order, the court must also find that the program had an opportunity to be represented by independent counsel. (If the program is a governmental entity, it must be represented by counsel. [§2.65(d)]. 17 For a description of the rules governing Qualified Service Organization Agreements, see TIP 19, Detoxification from Alcohol and Other Drugs (CSAT, 1995[b]), Appendix E, Legal and Ethical Issues, pp. 87-88. 18 For a description of the rules governing communications in medical emergencies, see TIP 19, Detoxification from Alcohol and Other Drugs (CSAT, 1995[b]), Appendix E, Legal and Ethical Issues, p. 87. 19 For a more complete explanation of the requirements of §§2.52 and 2.53, see TIP 14, Developing State Outcomes Monitoring Systems for Alcohol and Other Drug Abuse Treatment (CSAT, 1995[a]), Chapter 6, Legal Issues in Outcomes Monitoring, p. 58. 20 For a description of what and how programs may report crimes on program premises or against program personnel, see TIP 19, Detoxification from Alcohol and Other Drugs (CSAT, 1995[b]), Appendix E, Legal and Ethical Issues, p. 85. 21 For a comprehensive discussion of how programs should handle reporting child abuse or neglect to State authorities, see the TIP, Substance Abuse Treatment for Persons With Child Abuse and Neglect Issues (CSAT, 2000a). 22 For a brief discussion of the issues computerization raises, see TIP 23, Treatment Drug Courts: Integrating Substance Abuse Treatment with Legal Case Processing (CSAT, 1996), pp. 52-53.