III. Confidentiality and Welfare: The Key Areas

It is essential to understand that the Federal confidentiality law and regulations do permit disclosures to the welfare system of the records of patients receiving substance abuse treatment in most circumstances, as long as the Federal confidentiality requirements are followed scrupulously. Typically, this means obtaining the written consent of the patient to authorize the disclosure. Key areas for welfare caseworkers and substance abuse treatment providers who work with welfare recipients are discussed further below:

• disclosure of substance abuse diagnosis and treatment information from the treatment system to the welfare system;
• disclosure of substance abuse testing and screening information from the welfare system to the treatment system;
• reporting of attendance in—and failure to attend—a substance abuse treatment program to the welfare system;
• patient/client revocation of consent;
• reporting a substance abuse patient’s relapse to the welfare system;
• combined case planning between substance abuse staff and welfare caseworkers; and
• Qualified Service Organization agreements (QSOAs) between treatment and welfare systems.

1. Disclosure of Substance Abuse Diagnosis and Treatment Information From the Treatment System to the Welfare System

Information concerning a patient’s diagnosis and treatment is covered by the Federal confidentiality law and regulations; disclosure can be made only with the patient’s written consent or other appropriate legal authorization.

The Federal confidentiality law and regulations state that information obtained by Federally assisted substance abuse programs regarding an individual’s substance abuse drug treatment, and the “diagnosis” of a patient’s substance abuse (defined as “any reference to an individual’s alcohol or drug abuse or to a condition which is identified as having been caused by that abuse which is made for the purpose of treatment or referral for treatment”), are covered by the confidentiality protections (42 CFR §2.11 and 2.12(a)(ii)). Thus, a substance abuse program must obtain the written consent of the patient or obtain other authorization, as prescribed by the law and regulations, before it can make any disclosure of information related to treatment and/or a diagnosis.

Substance abuse programs can disclose to the welfare system information about treatment services only with the written consent of the patient (42 CFR Subpart C) or with other authorization such as a court order issued in accordance with 42 CFR Subpart D. Similarly, whenever a treatment program makes a diagnosis (or “clinical assessment”) to determine if an individual has a substance abuse problem, it can communicate information related to that diagnosis to the welfare system only with the written consent of the patient or with other authorization. These rules remain in force even if the welfare system referred the individual for diagnosis and treatment, and even if the welfare system mandated the individual to obtain one or both of those services.

In the great majority of situations involving communication of treatment or diagnostic information, written consent will be the vehicle that authorizes disclosure of information from the substance abuse treatment provider to the welfare agency. Written consent is valid for the purpose of authorizing disclosure of substance abuse patient information covered by the Federal confidentiality law only if it contains all nine elements required by §2.31 of the regulations (see discussion above).

Section 2.12(a)(1) states that the confidentiality law and regulations govern information disclosed by a “Federally assisted drug abuse...or...alcohol abuse program.” In addition, §2.11 defines a covered “program” as “an individual or entity. . . who holds itself out as providing, and provides, alcohol or drug abuse diagnosis, treatment, or referral for treatment . . .”

A patient consent form that would authorize a treatment program to communicate information concerning the diagnosis and treatment of substance abuse to the welfare system is presented in Appendix B (Sample Form #1).

In some jurisdictions, the welfare agency itself employs specialists in substance abuse problems who assess and diagnose welfare recipients and then refer those with substance abuse problems to treatment. Such specialists are covered by the Federal confidentiality law and regulations, so they would need consent forms signed by the individuals they diagnose before the results could be communicated to any other section of the welfare agency.

The welfare and treatment systems can work together to enhance their ability to obtain consent and minimize confusion and misunderstanding.

A little collaboration can go a long way in reducing confusion and improving the working relationships between the welfare and substance abuse treatment systems.

Practical Tip: As long as the patient consent form contains all nine elements required by the Federal confidentiality law and regulations, it does not matter who presented the form to the patient for signature. Thus, the welfare and substance abuse treatment systems could collaborate on the development of a common form and then use that form routinely whenever information will be needed. The welfare system could have the patient sign the form whenever it refers recipients to treatment or requires that an individual receive treatment in order to receive welfare. The treatment system could rely on that same consent to disclose back to the welfare agency.

Practical Tip: Only the party (or parties) named on a consent form can obtain information from the treatment program, directly or indirectly. Thus, if a welfare case worker wishes to disclose to another party information obtained via a consent form, the case worker would need to obtain, from the client, an additional consent form permitting the specific disclosure before making the redisclosure. The best way to avoid these types of paperwork headaches is to make sure that everyone who will need to receive the information is listed (by name or descriptively) on the initial consent form. The Federal regulations allow consent forms to authorize disclosures to multiple parties where all the other elements are identical. A multiparty consent form is presented in Appendix B (Sample Form #2).

Whenever a disclosure is made with the patient’s written consent, the treatment program making the disclosure must include with the information conveyed a notice that redisclosure is prohibited without further authorization. Such a notice is presented in Appendix B (Sample Form #3). The prohibition does not apply to sharing the information with others within the welfare agency who are included as recipients on the consent form.

2. Disclosure of Substance Abuse Testing and Screening Information From the Welfare System to the Treatment System

Alcohol and drug testing that is not conducted as part of a diagnosis of or treatment for an alcohol or other drug problem is not covered by Federal confidentiality rules; information related to a test conducted as part of a diagnosis or treatment is covered.

The Federal confidentiality law and regulations provide that information gathered by a “program” as defined in §2.11 CFR incident to diagnosis, treatment or referral for treatment, is covered. Therefore, if a welfare agency is a program as defined in §2.11 and it conducts a urine test, blood alcohol count, or other test for purposes other than a diagnosis or treatment regimen, any information related to that test is not covered by the Federal confidentiality regulations. In that situation, the welfare agency could communicate information about the test results without needing to obtain consent or any other authorization under the Federal confidentiality regulations.

The Federal confidentiality law and regulations would apply if the welfare agency were a “program” as defined in §2.11 CFR and the test was conducted as part of developing a diagnosis or in the course of referring for treatment services. If covered, the welfare program must obtain the written consent of the patient or obtain other authorization as prescribed by the Federal regulations before it can make any disclosure of information related to treatment and/or a diagnosis.

Information gathered in a “prescreen” for the purpose of referring an individual for a diagnosis
is not covered by the Federal law and regulations.

Increasingly, many welfare agencies are instituting a “screen” or “prescreen” procedure to identify welfare recipients who may have alcohol and other drug problems that could create a barrier to work. Individuals identified by this screening mechanism as possibly having an alcohol or other drug problem are then referred to a specialist whose job is to diagnose and, if the diagnosis reveals a substance abuse problem, refer the individual for treatment. Since the information gathered through the screening or prescreening process does not constitute a diagnosis and is not gathered for “the purpose of treatment or referral for treatment,” it is not covered by the Federal confidentiality rules. Thus, information gathered from the screen or prescreen may be communicated without restriction and without the written consent of the individual or any other authorization.

Practical Tip: If a welfare agency fits the definition of a “program” as defined in §2.11 CFR, the key issue in this analysis is whether a substance abuse specialist determined that the individual has an alcohol or drug problem. If such a determination was made, then the information gathered and the report generated is confidential under the Federal requirements. But if no determination was actually made as to whether the individual had a substance abuse problem, and instead an attempt was made simply to identify individuals who should be assessed for a diagnosis because they might have a problem, then nothing has been done that is covered by the Federal confidentiality law and regulations.

3. Reporting of Attendance in—and Failure To Attend—Substance Abuse Programs to the Welfare System

Substance abuse programs may report a welfare recipient’s attendance and or failure to attend treatment to the welfare system as long as a valid written consent signed by the patient is in effect.

Information about a welfare recipient’s parti¬cipation in substance abuse treatment can be disclosed to the welfare system or any other person or organization as long as the patient has signed a written consent form authorizing the disclosure. This includes information that may be detrimental to the patient in the sense that it could lead to termination of welfare benefits or other sanctions, including such facts as the failure of the individual to comply with treatment or leaving the program without permission before completion of treatment.

A substance abuse patient is allowed to revoke consent under §2.31(a)(8) CFR. If a patient does this, the consent is no longer valid “except to the extent that the program or person which is to make the disclosure has already acted in reliance on it.” That subsection of the Federal regulations states that “[a]cting in reliance includes the provision of treatment services in reliance on a valid consent to disclose information to a third-party payer.”

Thus, to the extent that the welfare system is a “third-party payer” providing payment to the program for the welfare recipient’s treatment, and the program relied on the consent to enable it to obtain payment, the treatment program can (but is not required to) continue making disclosures to the welfare system for purposes of obtaining payment for past services even after a patient revokes consent.

However, a program that continues to provide services after a patient has revoked a consent to the welfare system does so at its own financial peril. Since the consent was already revoked when it provided these services the program is not relying on the consent and thus cannot make a disclosure to the welfare system for the purpose of obtaining payment.

Practical Tip: A consent form is only in place until the date, event, or condition on which it expires (or the patient/client revokes consent), so it is a good idea to make sure that the expiration set forth on the consent form is sufficiently far in the future to ensure that the welfare system can receive appropriate information as needed. For example, if the consent expires when the patient/client leaves treatment, a treatment program would be unable to report to the welfare system that a patient/client left before completion of treatment since the consent would have expired the moment he or she left the program. It would be more advisable to have the consent contain an end date that is flexible, reasonable, and fits relevant circumstances such as, “30 or 60 days after treatment ends” or “when the patient/client is no longer eligible for welfare benefits.”

4. Patient/Client Revocation of Consent

Some welfare agencies are concerned about how to handle the situation if a patient/client revokes consent. As noted, treatment programs that relied on a consent for disclosure to the welfare system, consistent with §2.31(a)(8) CFR, are permitted to continue making disclosures to the welfare system as a third-party payer even if the client attempts to revoke that consent. For example, the treatment program has extended services in reliance on a consent that enables the welfare system to reimburse the program for treatment services. Substance abuse programs and welfare agencies should be aware of and use this provision when appropriate.

Practical Tip: Though revocation of patient consent is rare, in those situations where it does occur, there are ways in which substance abuse programs and welfare agencies can still continue their working relationship. While effective revocation of patient consent precludes a substance abuse program from making any further disclosures, such as whether the patient is still in treatment, welfare agencies that have been receiving information and then abruptly run into a “wall of silence” can make an educated surmise that the client may have revoked consent. The welfare agency could then approach the individual, ask why the flow of information has stopped and, where appropriate, require that verification of treatment status be provided or eligibility for benefits will end.

5. Reporting a Substance Abuse Patient’s Relapse to the Welfare System

Unfortunately, patients in substance abuse treatment sometimes have relapses. For most patients who have relapses, treatment will continue or resume.

Substance abuse treatment programs may report information about a patient’s treatment, including any relapse, to welfare officials if that information is covered by a valid written consent form signed by the patient. The same issues involving communication of treatment information and revocation of consent discussed previously would similarly apply to information about a patient’s relapses.

Practical Tip: Relapse information is subject to the same confidentiality protections as other treatment information. For many welfare agencies, the key information needed is whether the welfare recipient is proceeding satisfactorily in treatment—and satisfactory progress can include relapse as long as the patient remains in or resumes treatment—rather than whether a patient has relapsed.

6. Combined Case Planning Between Substance Abuse Staff and Welfare Caseworkers

The success of a client’s transition to work will involve collaborative planning between substance abuse counselors and welfare caseworkers. Most of the discussion between substance abuse staff and welfare caseworkers necessary for joint case planning will be permissible via a properly authorized consent form. It is often useful to tell a client that his case and progress will be discussed at periodic meetings (or conference calls, etc.) between substance abuse treatment and welfare staff.

It is useful to explain to the client who specifically will participate in such discussions. It is also a good idea to explain that, unless authorized by the client’s consent form, information from such a discussion cannot be further disclosed.

Practical Tip: To avoid repeated paperwork and confusion, it is useful to have the client complete a multiparty consent form that lists all the potential people who would be involved in case planning meetings. Multiparty consent forms such as the one shown in Appendix B (Sample Form #2) can be designed to fit any case planning meeting. A Qualified Service Organization agreement (QSOA) between a substance abuse treatment program and a service organization may also be used to conduct combined case planning. QSOAs are described in the section that follows.

7. Qualified Service Organization Treatment and Welfare Systems Agreements (QSOAs) Between

Substance abuse treatment programs may disclose information to a “Qualified Service Organization” without the patient’s consent (§2.12(c)(4) CFR). A service organization is an organization that provides services to the substance abuse program. An agreement between a treatment program and a Qualified Service Organization is a “Qualified Service Organization agreement,” or QSOA. For an illustration of such an agreement, see Appendix B (Sample Form #4).

A QSOA permits patient-identified communication between the substance abuse treatment program and the service organization without individual client consent as long as the disclosure is for the purpose of enabling the service organization to provide a service to the treatment program and so long as the information is only disclosed back to the treatment program. In entering the QSOA, the service organization agrees to be bound by the provisions of 42 CFR Part 2 and to resist in court any effort to obtain access to information which would not be permitted by Federal confidentiality regulations.

Practical Tip: Although the case planning discussions could be conducted using consent forms, they would also be permissible using a QSOA as long as the information is not redisclosed beyond the welfare agency and the treatment program, unless further authorization were to be obtained. The rationale for a QSOA in this circumstance is that the service provided to the program is the benefit of having coordinated planning with welfare staff. The QSOA requires the signatures of the director of the substance abuse treatment program and the head of the welfare agency. However, reimbursement by the welfare system for substance abuse treatment is not a “service” being provided to the treatment organization. It is payment for a service being rendered by the treatment program. Thus, in order to make disclosures to the welfare agency for the purpose of recovering reimbursement for treatment, a program needs to obtain the client’s written consent as discussed above.

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