[Code of Federal Regulations]
[Title 38, Volume 1]
[Revised as of January 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 38CFR1.494]

[Page 35-36]
 
            TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF
 
                CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS
 
PART 1_GENERAL PROVISIONS--Table of Contents
 
Sec. 1.494  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 covered by Sec. Sec. 1.460 through 1.499 of this part 
to criminally investigate or prosecute a patient may be applied for by 
VA 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. 1.495 of this 
part is sought with an order under this section, VA 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.
    (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 VA. 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

[[Page 36]]

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, but not limited to, 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 VA 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, VA has 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 applications; and
    (3) Include such other measures as are necessary to limit disclosure 
and use to the fulfillment on only that public interest and need found 
by the court.

(Authority: 38 U.S.C. 7332(c))