IN RE AUGUST, 1993 REGULAR GRAND JURY

• Decision Date: 20 May 1994
• Docket Number: Misc. No. 93-63. Grand Jury Subpoena No. KMS-41-04.
• Citation: 854 F. Supp. 1380
• Parties: In re The AUGUST, 1993 REGULAR GRAND JURY. (Hospital Subpoena).
• Court: U.S. District Court — Southern District of Indiana

854 F. Supp. 1380

In re The AUGUST, 1993 REGULAR GRAND JURY. (Hospital Subpoena).

Misc. No. 93-63. Grand Jury Subpoena No. KMS-41-04.

United States District Court, S.D. Indiana, Indianapolis Division.

May 20, 1994.

Rebekah N. Murphy, N. Kent Smith, Hall Render Killian Heath & Lyman, P.C., Indianapolis, IN, for the Subpoenaed Hosp.

Kathleen M. Sweeney, Asst. U.S. Atty., Indianapolis, IN, for the Government.

Entry Regarding Hospital's Motion to Quash Subpoena & Motion for Protective Order, and United States' Ex Parte Motion for Order Permitting Disclosure of Patient Medical Records

TINDER, District Judge.

As part of an ongoing investigation into possible criminal conduct by a psychotherapist¹ and other health providers, a grand jury sitting in the Southern District of Indiana subpoenaed patient records from the Hospital. Because the psychotherapist exercised staff privileges at the Hospital and treated Hospital patients, the hospital has been asked to produce the following:

Any and all documents related to the discharge of patients treated by the psychotherapist for the period of July, 1990 through and including November, 1990. Documents should include, but not be limited to, billing information, discharge summaries, admissions summaries, etc.

Mot. to Quash Subpoena at Ex. B. On January 25, 1994, in response to the subpoena, the Hospital filed this motion to quash the subpoena and requested a protective order limiting the disclosure of patient records. The basis for quashing the subpoena, argues the Hospital, is the Government's failure to obtain the necessary order authorizing the release of certain drug and alcohol abuse treatment records which are purportedly protected from disclosure by federal statute. See 42 U.S.C.A. § 290dd-2 (West Supp. 1994).² As for the protective order, Hospital asks the court to limit the Government's use of the psychiatric information contained in the records to the grand jury investigation only, and to prohibit the Government from using the data in subsequent criminal or civil judicial proceedings absent prior notice to the Hospital and approval of the court. In an effort to quell the Hospital's motion to quash, the Government responded by filing the appropriate request, under seal and pursuant to § 290dd-2(b)(2)(C), for a court order authorizing disclosure of the patient records. In all other respects, the Government opposes the Hospital's requests.

I. Authorization to Disclose Drug and Alcohol Treatment Records

Disclosure of certain medical records, related to the treatment of drug and alcohol abuse patients in federally funded treatment programs, is controlled by a provision of the Public Health Service Act, 42 U.S.C. § 290dd-2, which provides:

Records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any program or activity relating to substance abuse education, prevention, training, treatment, rehabilitation, or research, which is conducted, regulated, or directly or indirectly assisted by any department or agency of the United States shall ... be confidential and disclosed only for the purposes and under the circumstances expressly authorized under subsection (b) of this section.

42 U.S.C.A. § 290dd-2(a) (West Supp.1994). Behind this enactment lies a strong belief that the serious problems faced by substance abusers can only be countered by medical treatment, the effectiveness of which depends largely on the patient's confidence in the confidentiality of his treatment, including both the fact he is receiving help for his problem as well as statements made during treatment to the program providers. See United States v. Eide, 875 F.2d 1429, 1436 (9th Cir.1989); United States v. Cresta, 825 F.2d 538, 552 (1st Cir.1987), cert. denied sub nom. Impemba v. United States, 486 U.S. 1042, 108 S.Ct. 2033, 100 L.Ed.2d 618 (1988); United States v. Graham, 548 F.2d 1302, 1314 (8th Cir.1977). By creating a statutory presumption that a patient's records will be protected from disclosure absent a compelling reason, the treatment of abusers is made that much easier. Of course a patient can always consent to disclosure of his records. 42 U.S.C. § 290dd-2(b)(1).³ Even if, however, the records are deemed protected, and even if the patient fails or refuses to consent, disclosure is permitted in a few prescribed statutory circumstances:

Whether or not the patient, with respect to whom any given record referred to in subsection (a) of this section is maintained, gives written consent, the content of such record may be disclosed as follows:

(A) To medical personnel to the extent necessary to meet a bona fide medical emergency.

(B) To qualified personnel for the purpose of conducting scientific research management audits, financial audits, or program evaluation, but such personnel may not identify, directly or indirectly, any individual patient in any report of such research, audit, or evaluation, or otherwise disclose patient identities in any manner.

(C) If authorized by an appropriate order of a court of competent jurisdiction granted after application showing good cause therefor, including the need to avert a substantial risk of death or serious bodily harm. In assessing good cause the court shall weigh the public interest and the need for disclosure against the injury to the patient, to the physician-patient relationship, and to the treatment services. Upon the granting of such order, the court, in determining the extent to which any disclosure of all or any part of any record is necessary, shall impose appropriate safeguards against unauthorized disclosure.

Id. § 290dd-2(b)(2). While the extent disclosure requirements may vary depending on the exact nature of the records (as will shortly be seen), an overarching and universal precondition to disclosing protected information is satisfaction of one of these three tests. Here, however, the Government argues neither the existence of a medical emergency (§ 290dd-2(b)(2)(A)) nor the information is sought to assist in auditing the Hospital's program (§ 290dd-2(b)(2)(C)); instead it focuses on the third circumstance for disclosure and seeks to establish the existence of "good cause" to support a court order releasing the data. As the party seeking disclosure of the records held by the Hospital, the Government bears the burden of establishing "good cause." Cresta, 825 F.2d at 552; United States v. Smith, 789 F.2d 196, 205 (3d Cir.), cert. denied, 479 U.S. 1017, 107 S.Ct. 668, 93 L.Ed.2d 720 (1986).

Pursuant to authority granted in § 290dd-2d(g), the Secretary of the Department of Health and Human Service promulgated regulations implementing the statutory disclosure provisions. See 42 C.F.R. §§ 2.1-2.67 (1994). Section 2.66 of the rules, which the Government argues is the applicable standard, dictates "procedures and criteria for orders authorizing disclosure and use of records to investigate or prosecute a program or the person holding the records." Id. § 2.66. And indeed it is the correct set of rules because the term "program," defined as "a person which in whole or in part holds itself out as providing, and provides, alcohol or drug abuse diagnosis, treatment, or referral for treatment, ..." id. § 2.11, is broad enough to encompass the psychotherapist or any other therapists, the targets of the grand jury investigation and a provider of substance abuse counseling at the Hospital. Each of the prerequisites to a court order authorizing disclosure contained in § 2.66, except satisfaction of the "good cause" test (discussed below), seem easily satisfied: (1) the grand jury, granted broad authority to investigate violations of federal criminal statutes, is an "investigative, law enforcement, or prosecutorial agency having jurisdiction over the program's or person's activities;" id. § 2.66(a)(1); (2) as allowed by regulation, the Government filed this application separately "against a program or the person holding the records," and it appears "the patient records are needed to provide material evidence," id. § 2.66(a)(2), inasmuch as they contain data of the type and quantity of treatment rendered to patients by treatment providers which can be compared against bills submitted to federally-funded medical programs. Other portions of § 2.66, such as § 2.66(b) regarding post-order notice and § 2.66(d) concerning limits on the use of disclosed information, stipulate the contents of any order the court might issue authorizing disclosure, rather than preconditions to disclosure. Aside from the most vital prerequisite to disclosure — satisfaction of the "good cause" test — the Government so far demonstrates the necessary factors to procure a court order allowing release of the confidential information.

The Government does not dispute that some, if not all, of the materials sought in the subpoena fall within the protection § 290dd-2 — the documents contain information as to the identity, treatment, and diagnosis of patients in both drug and alcohol abuse treatment programs at the Stress Center in the Hospital that receives federal funding for these programs. See 42 C.F.R. § 2.11 (1993) (defining terms and delimiting applicability of statute); 42 C.F.R. § 2.12 (1993) (discussing applicability of provisions). Because the regulations treat different types of information dissimilarly, however, merely agreeing the records contain data protected by § 290dd-2 is not enough. Instead, the information must be differentiated and categorized as either "confidential communications" or as something other than confidential communications. Prior to an amendment in 1987, the regulations explicitly denominated this latter category as "objective data," consisting of all information regarding a patient's treatment in a program except "communications by a patient to personnel of the program...." 42 C.F.R. § 2.63(a) (amended 1987). The subsequent amendment inverted the phrasing of the...