Substance Abuse and the Release of Information
By Kathleen Parkinson, RHIA, CAADC, CSAC, LSC, IDP-AT
Client substance abuse issues are covered under stricter laws than those in many other health care settings. As such, it’s important for substance abuse agencies to be well versed in the release of information requirements.
Does the Law Apply to the Agency?
Agencies that fall under Title 42 of the Code of Federal Regulations are those “relating to alcoholism or alcohol abuse education, training, treatment, rehabilitation, or research which is conducted, regulated, or directly or indirectly assisted by any department or agency of the United States.”
Release of Information Categories
In general, there are three types of requests: those with written consent, those without written consent, and those under court order.
Releases With Written Consent
Simple acknowledgement of a client’s presence within a program or facility requires written consent. For example, this would apply when parents are seeking information about a child in treatment. Each state has its own laws on what age is considered adulthood under substance abuse law. Adults sign their own releases. This requirement also would affect a significant other who wants to know whether their partner is in treatment.
Title 42 of the Code of Federal Regulations includes a suggested format for written consent, and sample forms may be found online. A written consent in the substance abuse field must include the following nine components:
• who is permitted to make the disclosure;
• to whom the information is to be released;
• the client’s name;
• the reason for the disclosure;
• how much and what type of information is to be released;
• “the signature of the patient and, when required for a patient who is a minor, the signature of a person authorized to give consent ... or when required for a patient who is incompetent or deceased, the signature of person authorized to sign ... in lieu of the patient”;
• the date the form is signed;
• a statement saying the signing person may revoke the release at any time to prevent the future release of that information. (Certain people within the criminal justice system can be required to sign a release that further limits the person’s right to revoke a consent. Title 42 of the Code of Federal Regulations lays out the specifics.); and
• “the date, event, or condition upon which the consent will expire if not revoked before. This date, event, or condition must insure that the consent will last no longer than reasonably necessary to serve the purpose for which it is given.”
There are two main points to keep in mind when redisclosing patient information. Information received from another party, such as a doctor’s office or a pharmacy, may not be released again unless the agency has secured a separate written consent from the client.
Second, any information sent to another agency by the original party is required to include the following verbiage within the released information:
This information has been disclosed to you from records protected by Federal confidentiality rules (42 CFR part 2). The Federal rules prohibit you from making any further disclosure of this information unless further disclosure is expressly permitted by the written consent of the person to whom it pertains or as otherwise permitted by 42 CFR part 2. A general authorization for the release of medical or other information is NOT sufficient for this purpose. The Federal rules restrict any use of the information to criminally investigate or prosecute any alcohol or drug abuse patient. [52 FR 21809, June 9, 1987; 52 FR 41997, Nov. 2, 1987]
Releases Without Written Consent
Information may be released without client written consent in the following circumstances:
• within a program or an entity that has direct administrative control over the program;
• a bona fide medical emergency. In this event, patient information may be released to medical personnel but only to the extent necessary;
• when it is needed by qualified personnel involved in scientific research, management audits, financial audits, or program evaluation;
• under appropriate court order;
• instances of child abuse and/or neglect;
• when there is threatened or actual crime committed against agency personnel or on the agency’s premises; and
• when a client is seeking detoxification or maintenance treatment, limited information is permitted to be released to central registries to help eliminate a client’s concurrent enrollment in more than one treatment program. (This applies to registries within 200 miles of the treatment program.)
The VA and the Armed Forces fall under separate laws, some of which supersede these requirements.
In most cases, when an agency is requested to release information to law enforcement or the courts, it is best to try to secure the release directly from the client/patient. This not only alerts the client that an outside entity is seeking information, but it also makes it easier to handle the release of information process. In cases where a signed release cannot be secured, agencies must refer to federal and state laws, an attorney, or in-house policies and procedures for advice.
As health care’s rules and regulations change rapidly, a review of release of information’s basics can help refocus an agency’s energies. Such reminders can guide organizations looking to successfully and efficiently exchange information in its various formats.
— Kathleen Parkinson, RHIA, CAADC, CSAC, LSC, IDP-AT, currently works with Eighth Day Substance Abuse Services.