Protecting the Confidentiality of LGBT Individuals in Substance Abuse Treatment Programs

Confidentiality Requirements

Concerned about the adverse effects stigma and discrimination have on clients in recovery and how stigma and discrimination might deter people from entering treatment, Congress passed legislation (42 U.S.C. §290dd-2) and the U.S. Department of Health and Human Services issued a set of regulations (Vol. 42 of the Code of Federal Regulations [CFR], Part 2) to protect information about clients’ substance abuse treatment.

The Federal law and regulations severely restrict communications about identifiable clients by “programs” specializing, in whole or in part, in providing treatment, counseling, and/or assessment and referral services for substance abuse problems (42 CFR §2.11). Although the Federal regulations apply only to programs that receive Federal assistance, this includes indirect forms of Federal aid, such as tax-exempt status or State or local government funding coming (in whole or in part) from the Federal Government.

The regulations for communications are more restrictive in many instances than, for example, either doctor-patient or attorney-client privilege. They protect any information about an individual who has applied for or received any substance abuse-related assessment, treatment, or referral services from a program. They apply from the time the individual makes an appointment and apply to former clients as well. They apply to any information that would identify the individual either directly or by implication as a substance abuser. They apply whether or not the person seeking information already has that information, has other ways of getting it, has some form of official status, is authorized by State law, or comes armed with a subpoena or search warrant. Violating the regulations is punishable by a fine of up to $500 for a first offense and up to $5,000 for each subsequent offense (§2.4).

Programs can find detailed information about compliance with the regulations in Technical Assistance Publication 13 Confidentiality of Patient Records for Alcohol and Other Drug Treatment (CSAT [Center for Substance Abuse Treatment], 1999a), available from the Substance Abuse and Mental Health Services Administration’s (SAMHSA’s) National Clearinghouse for Alcohol and Drug Information (NCADI) at 800–729–6686. What follows is a brief description of some of the regulations’ major provisions.

When May Confidential Information Be Shared With Others?

The confidentiality regulations permit disclosure without the client’s consent in several situations, including medical emergencies, reporting child abuse, and communications among program staff. (For a full discussion of these exceptions, see CSAT, 1999a.)