Federal Drug and Alcohol Confidentiality Laws

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In the substance abuse treatment field, confidentiality is governed by federal laws (42 U.S.C. § 290dd-2) and regulations (42 CFR Part 2) that outline the limited circumstances under which information about an individual’s drug or alcohol treatment may be disclosed without the individual’s consent.

The federal regulation at 42 CFR Part 2 pertains to any program that involves substance abuse education, treatment, or prevention and is regulated or assisted by the federal government.[1] It applies to all records relating to the identity, diagnosis, prognosis, or treatment of any patient in a substance abuse program that is conducted, regulated, or directly or indirectly assisted by any department or agency of the United States.

Information contained in records covered by 42 CFR Part 2 can be shared if written consent is obtained. A written consent form must contain all of the following elements:[2]

  1. The names or general designations of the programs making the disclosure
  2. The name of the individual or organization who will receive the disclosure
  3. The name of the patient who is the subject of the disclosure
  4. The specific purpose of or need for the disclosure
  5. A description of how much and what kind of information will be disclosed
  6. The patient’s right to revoke the consent in writing and any exceptions to the right to revoke, or, if the exceptions are included in the program’s notice, a reference to the notice
  7. The program’s ability to condition treatment, payment, enrollment, or eligibility of benefits on the patient’s agreeing to sign the consent, by stating either that the program may not condition these services on the patient’s signing of the consent or that these are the consequences for the patient’s refusal to sign the consent
  8. The date, event, or condition upon which the consent expires if not previously revoked[3]
  9. The signature of the patient (and/or other authorized person)
  10. The date on which the consent is signed

Disclosure of Information Covered by 42 CFR Part 2

Regulation 42 CFR Part 2 allows for disclosure without written consent in any of the following situations:

  • As required under a state mandate to report child abuse or neglect[4],[5]
  • When cause of death is being reported[6]
  • As requested in a valid court order accompanied by a subpoena[7]

    [1] 42 C.F.R. § 2.31(a); 45 C.F.R. § 164.508(c).

    [2] 42 C.F.R. § 2.31(a); 45 C.F.R. § 164.508(c).

    [3] When consent is used in a criminal justice setting, expiration of the consent may be conditioned on the completion of, or termination from, a program instead of a date.

    [4] 42 C.F.R. § 2.12[c][6].

    [5] 45 C.F.R. §164.512[b][1][ii].

    [6] 42 C.F.R. § 2.15[b].

    [7] 42 C.F.R. § 2.61.