[Code of Federal Regulations]

[Title 42, Volume 1]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 42CFR2.65]



[Page 24-25]

 

                         TITLE 42--PUBLIC HEALTH

 

    CHAPTER I--PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN 

                                SERVICES

 

PART 2_CONFIDENTIALITY OF ALCOHOL AND DRUG ABUSE PATIENT RECORDS--Table 

of Contents

 

          Subpart E_Court Orders Authorizing Disclosure and Use

 

Sec. 2.65  Procedures and criteria for orders authorizing disclosure and 

use of records to criminally investigate or prosecute patients.



    (a) Application. An order authorizing the disclosure or use of 

patient records to criminally investigate or prosecute a patient may be 

applied for by the person holding the records or by any person 

conducting investigative or prosecutorial activities with respect to the 

enforcement of criminal laws. The application may be filed separately, 

as part of an application for a subpoena or other compulsory process, or 

in a pending criminal action. An application must use a fictitious name 

such as John Doe, to refer to any patient and may not contain or 

otherwise disclose patient identifying information unless the court has 

ordered the record of the proceeding sealed from public scrutiny.

    (b) Notice and hearing. Unless an order under Sec. 2.66 is sought 

with an order under this section, the person holding the records must be 

given:

    (1) Adequate notice (in a manner which will not disclose patient 

identifying information to third parties) of an application by a person 

performing a law enforcement function;

    (2) An opportunity to appear and be heard for the limited purpose of 

providing evidence on the statutory and regulatory criteria for the 

issuance of the court order; and

    (3) An opportunity to be represented by counsel independent of 

counsel for an applicant who is a person performing a law enforcement 

function.

    (c) Review of evidence: Conduct of hearings. Any oral argument, 

review of evidence, or hearing on the application shall be held in the 

judge's chambers or in some other manner which ensures that patient 

identifying information is not disclosed to anyone other than a party to 

the proceedings, the patient, or the person holding the records. The 

proceeding may include an examination by the judge of the patient 

records referred to in the application.

    (d) Criteria. A court may authorize the disclosure and use of 

patient records for the purpose of conducting a criminal investigation 

or prosecution of a patient only if the court finds that all of the 

following criteria are met:

    (1) The crime involved is extremely serious, such as one which 

causes or directly threatens loss of life or serious bodily injury 

including homicide, rape, kidnapping, armed robbery, assault with a 

deadly weapon, and child abuse and neglect.

    (2) There is a reasonable likelihood that the records will disclose 

information of substantial value in the investigation or prosecution.

    (3) Other ways of obtaining the information are not available or 

would not be effective.

    (4) The potential injury to the patient, to the physician-patient 

relationship and to the ability of the program to provide services to 

other patients is outweighed by the public interest and the need for the 

disclosure.

    (5) If the applicant is a person performing a law enforcement 

function that:

    (i) The person holding the records has been afforded the opportunity 

to be



[[Page 25]]



represented by independent counsel; and

    (ii) Any person holding the records which is an entity within 

Federal, State, or local government has in fact been represented by 

counsel independent of the applicant.

    (e) Content of order. Any order authorizing a disclosure or use of 

patient records under this section must:

    (1) Limit disclosure and use to those parts of the patient's record 

which are essential to fulfill the objective of the order;

    (2) Limit disclosure to those law enforcement and prosecutorial 

officials who are responsible for, or are conducting, the investigation 

or prosecution, and limit their use of the records to investigation and 

prosecution of extremely serious crime or suspected crime specified in 

the application; and

    (3) Include such other measures as are necessary to limit disclosure 

and use to the fulfillment of only that public interest and need found 

by the court.



[52 FR 21809, June 9, 1987; 52 FR 42061, Nov. 2, 1987]