Tag Archives: 42 U.S.C. § 290dd-2

Adolescent and Family Institute of Colorado, Inc. v. Colorado Department of Human Services, Division of Behavioral Health, f/k/a Alcohol and Drug Abuse Division, 2013COA44 (March 28, 2013)

The government wants Plaintiff’s patient data. Plaintiff is a private, for-profit facility that provides treatment for patients with substance abuse and mental health disorders. Plaintiff claimed patient data was protected by CRS 13-90-107(1)(g), creating the psychotherapist-patient privilege, and 42 U.S.C. § 290dd-2, Federal Confidentiality Statutes (FCS). On review, the court of appeals agreed with the trial court, holding the data could be disclosed. First, CRS 13-90-107 is limited to the litigation context and did not apply. Second, under the FCS, patient data is disclosable to an agency with “direct administrative control,” which the state was not, or under an “audit and evaluation” exception, which did apply. Thus, the data could be required to be disclosed once the state, but only once the state implements a required data retention and destruction policy.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA2586-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8885&courtid=1

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Filed under Administrative, Evidence, Government

Adolescent and Family Institute of Colorado, Inc. v. Colorado Department of Human Services, Division of Behavioral Health, f/k/a Alcohol and Drug Abuse Division, 2013COA44 (March 28, 2013)

Pop quiz: are medical records “confidential,” “privileged,” or both? Answer: yes. Here, Defendant, a state agency, required licensed drug and alcohol treatment programs to submit forms with confidential patient information. In the trial court, Plaintiff claimed the forms violated state and federal statutes. The court of appeals first held the doctor-patient “privilege” under CRS 13-90-107 only protects testimonial witnesses. Federal law protects the “confidentiality” of medical records (42 U.S.C. § 290dd-2; 42 C.F.R. §§ 2.1, 2.2), except for entities with “direct administrative control” over a program. The court held the agency lacked that control, but the forms could be required for an audit or evaluation if there were a data retention and destruction policy. Here, there was no evidence of a data policy; until there was, Plaintiff was not required to submit the forms.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA2586-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8885&courtid=1

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Filed under Administrative, Evidence, Government