[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: 42CFR2.67]



[Page 25-26]

 

                         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. 2.67  Orders authorizing the use of undercover agents and informants 

to criminally investigate employees or agents of a program.



    (a) Application. A court order authorizing the placement of an 

undercover agent or informant in a program as an employee or patient may 

be applied for by any law enforcement or prosecutorial agency which has 

reason to believe that employees or agents of the program are engaged in 

criminal misconduct.

    (b) Notice. The program director must be given adequate notice of 

the application and 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), unless the application 

asserts a belief that:



[[Page 26]]



    (1) The program director is involved in the criminal activities to 

be investigated by the undercover agent or informant; or

    (2) The program director will intentionally or unintentionally 

disclose the proposed placement of an undercover agent or informant to 

the employees or agents who are suspected of criminal activities.

    (c) Criteria. An order under this section may be entered only if the 

court determines that good cause exists. To make this determination the 

court must find:

    (1) There is reason to believe that an employee or agent of the 

program is engaged in criminal activity;

    (2) Other ways of obtaining evidence of this criminal activity are 

not available or would not be effective; and

    (3) The public interest and need for the placement of an undercover 

agent or informant in the program outweigh the potential injury to 

patients of the program, physician-patient relationships and the 

treatment services.

    (d) Content of order. An order authorizing the placement of an 

undercover agent or informant in a program must:

    (1) Specifically authorize the placement of an undercover agent or 

an informant;

    (2) Limit the total period of the placement to six months;

    (3) Prohibit the undercover agent or informant from disclosing any 

patient identifying information obtained from the placement except as 

necessary to criminally investigate or prosecute employees or agents of 

the program; and

    (4) Include any other measures which are appropriate to limit any 

potential disruption of the program by the placement and any potential 

for a real or apparent breach of patient confidentiality; for example, 

sealing from public scrutiny the record of any proceeding for which 

disclosure of a patient's record has been ordered.

    (e) Limitation on use of information. No information obtained by an 

undercover agent or informant placed under this section may be used to 

criminally investigate or prosecute any patient or as the basis for an 

application for an order under Sec. 2.65 of these regulations.