Special Consent Circumstances
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Minors
State law generally determines the applicability of the Part 2 regulations to minors. The age of majority is set by state law, and a minor is an individual who has not reached that age.82 If there is no such state law, the age of majority is eighteen years old.
i. State Law Granting Capacity to Minor. If the state grants a minor the legal capacity to apply for and obtain substance abuse treatment, only the minor patient may consent to disclosure of his/her information.83 This applies to disclosures to the minor’s parent/guardian for the purpose of obtaining payment. A program may refuse to treat a minor until s/he consents to a disclosure necessary to obtain payment, unless a law requires that the program provide services even if the patient cannot pay.
ii. State Law Requiring Consent of Parent or Guardian. If the state requires that an adult representing the minor give consent in order for the minor to obtain substance abuse treatment, both the minor and his/her representative must consent to disclosures of the minor’s information.84 The fact that a minor has applied for treatment may only be disclosed to his/her representative if the minor gives written consent for the disclosure85 or if the program’s director determines that the minor does not have the capacity to make a rational choice about whether or not to consent86 because of his/her extreme youth or mental or physical condition.87
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Incompetent Patients
If a patient has been legally declared incompetent to manage his/her affairs (other than because of age), the person authorized under state law to act on the patient’s behalf may give any consent required by Part 2.88
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Deceased Patients
Disclosures of information identifying a deceased patient as a substance abuser (other than those relating to cause of death, discussed above in Section 3(g)) are subject to Part 2.89 Where written consent for a disclosure is required, consent may be given by a personal representative appointed under state law. If there is no such appointment, consent may be given by the patient’s spouse or, if none, by any responsible member of the patient’s family.
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Disclosures to Central Registries
A central registry90 is an organization that obtains patient identifying information from two or more member programs91 about individuals applying for maintenance92 or detoxification treatment.93
A program may disclose patient records to a central registry or to any detoxification or maintenance treatment program within 200 miles to prevent the multiple enrollment of a patient.94 The disclosure must be:
- Made at one of the following times:
- Limited to the following information:
- Made with the patient’s written consent meeting all regular requirements, except that:
- The consent must list the name and address of each central registry and each known treatment program to which a disclosure will be made;101 and
- The consent may authorize disclosures to any treatment program within 200 miles that is unknown at the time consent is given without naming any such program.102
A central registry or detoxification or maintenance program may only disclose or use patient identifying information to prevent multiple enrollments, unless authorized by court order.103 When a member program asks a central registry if an identified patient is enrolled in another member program, the registry may disclose the name, address, and phone number of the member program(s) in which the patient is already enrolled to the inquiring member program104 and vice versa.105 Member programs may communicate with each other to verify information and to prevent or eliminate multiple enrollments. A detoxification or maintenance treatment program that has received a disclosure and determined that the patient is already enrolled may communicate with the disclosing program to verify information and to prevent or eliminate any multiple enrollments.106
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Disclosures in Connection with Criminal Justice Referrals
A program may disclose patient information to persons within the criminal justice system who have required that the patient participate in the program as a condition of the resolution of any criminal proceedings against the patient or of the patient's parole or other release from custody if:
- The disclosure is made only to those individuals within the criminal justice system who need the information to monitor the patient's progress (e.g., a prosecuting attorney who is withholding charges against the patient or parole officers supervising the patient);107 and
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The patient has signed a valid written consent that includes all the elements described above in Section 4(a), not including the statement that the consent is subject to revocation at any time, as well as the following additional information:108
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The period during which the consent remains in effect. This period must be reasonable, taking into account the following:
- The anticipated length of the treatment;109
- The type of criminal proceeding involved, the need for the information in connection with the final resolution of that proceeding, and when the final resolution will occur;110 and
- Other factors the program, patient, and the person(s) who will receive the disclosure consider pertinent.111
- A statement that the consent is revocable after a specific time period or upon the occurrence of a specific event.112 The consent may become revocable no later than the patient’s conditional release or other action in connection with which consent was given.
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The period during which the consent remains in effect. This period must be reasonable, taking into account the following:
A person who receives patient information in connection with a criminal justice referral may re-disclose and use it only to carry out that person's official duties related to the patient's conditional release or other action in connection with which the consent was given.113
Footnotes
- 82. 42 CFR § 2.14(a).
- 83. 42 CFR § 2.14(b).
- 84. 42 CFR § 2.14(c)(1).
- 85. 42 CFR § 2.14(c)(2)(i).
- 86. 42 CFR § 2.14(c)(2)(ii).
- 87. 42 CFR § 2.14(d)(1).
- 88. 42 CFR § 2.15(a)(1).
- 89. 42 CFR § 2.15(b)(2).
- 90. 42 CFR § 2.34(a), at “Central Registry.”
- 91. A member program is a detoxification or maintenance treatment program that reports patient identifying information to a central registry and which is in the same state as that central registry or is not more than 125 miles from any border of the state in which the central registry is located (42 CFR § 2.34, at “Member program”).
- 92. Maintenance treatment is the dispensing of a narcotic drug in the treatment of an individual for dependence upon heroin or other morphine-like drugs (42 CFR § 2.34, at “Maintenance treatment”).
- 93. Detoxification treatment is the dispensing of a narcotic drug in decreasing doses to an individual in order to reduce or eliminate adverse physiological or psychological effects incident to withdrawal from the sustained use of a narcotic drug (42 CFR § 2.34, at “Detoxification treatment”).
- 94. 42 CFR § 2.34(b).
- 95. 42 CFR § 2.34(b)(1)(i).
- 96. 42 CFR § 2.34(b)(1)(ii).
- 97. 42 CFR § 2.34(b)(1)(iii).
- 98. 42 CFR § 2.34(b)(2)(i).
- 99. 42 CFR § 2.34(b)(2)(ii).
- 100. 42 CFR § 2.34(b)(2)(iii).
- 101. 42 CFR § 2.34(b)(3)(i).
- 102. 42 CFR § 2.34(b)(3)(ii).
- 103. 42 CFR § 2.34(c).
- 104. 42 CFR § 2.34(d)(1).
- 105. 42 CFR § 2.34(d)(2).
- 106. 42 CFR § 2.34(e).
- 107. 42 CFR § 2.35(a)(1).
- 108. 42 CFR § 2.35(a)(2).
- 109. 42 CFR § 2.35(b)(1).
- 110. 42 CFR § 2.35(b)(2).
- 111. 4 2 CFR § 2.35(b)(3).
- 112. 42 CFR § 2.35(c).
- 113. 42 CFR § 2.35(d).
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