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Everlast Recovery Centers INC.
Confidentiality of participants, participant’s files and information is assured. A copy of the federal regulations is available at the program.
There is a written statement regarding confidentiality when answering the telephone and confidentiality regarding files in the program’s operations manual. Participant files are accessible only to authorized personnel.
Legal Procedures and Confidentiality Guidelines
A. It is the policy of Everlast Recovery Center INC. that the confidentiality of current and former persons served be protected throughout all legal procedures which may involve verbal and/or written communication between employees of the organization and outside legal entities.
B. The guidelines and procedures of this policy are followed with strict adherence to the legal requirements involved in the above noted communications. Employees will receive initial and ongoing training in the confidentiality guidelines of legal procedures to ensure that rights of the persons we serve are fully protected.
A. Duty to Warn:
- Definition: The duty to warn is defined as a person served revealing by any means a specific and immediate threat to cause serious bodily injury or death to an identified person(s), including self, and the person receiving the information reasonably believes that the person has the intent and the ability to carry out the threat immediately or imminently. The duty to warn supersedes all confidentiality laws.
- In situations which involve a substance abuse diagnosis, Federal Law 42CFR, Part 2, requires that the duty to warn does not include disclosure or any inference concerning information that a third party could use to identify the individual as having a substance abuse diagnosis or problem.
- If a public service employee is being requested to arrest, detain or transfer an individual known to have a communicable disease that may threaten the health of the public service employee, the following guidelines will apply:
a. Public safety employees should be made aware of the potential risk or exposure to a communicable disease without revealing the specific type of disease the individual is known to carry.
b. Communicable disease is defined as any airborne infection or disease as well as those transmitted by contact with blood or human body fluids.
c. Public safety employees are defined as any person with law-enforcement authority under the control of state and/or local governing bodies.
d. Employees involved in the situation should make every reasonable attempt to determine if the person served is known to be infected with a communicable disease by referring to the record, asking the individual directly, or consultation with other employees who have direct service contact with the individual.
e. Public safety employees must be informed of the “potential risk of exposure to a communicable disease” by communicating the necessary information to alert the public safety personnel of the risk, without disclosing the suspected or known condition.
4. Response to Imminent Threat or Danger: In the event that a decision is made to take precautions to protect due to an imminent threat of harm, employees should take the following actions:
a. Notify your supervisor for assistance, support, and consultation.
b. Warn the intended victim or the victim’s parent if a minor.
c. Contact law enforcement having jurisdiction in the area where the person served or intended victim live or work.
d. Attempt to prevent, through verbal means the individual from using violence until law enforcement can take custody.
e. Continue the interaction with the person making the threat if you judge that by doing so the person’s intention to cause injury or death to self or other may be diminished to the extent the “duty to warn” is no longer valid.
f. If you judge the person to no longer be a threat requiring a “duty to warn”, immediately seek consultation with a supervisor following the interaction to assess the level of continued contact or care that may be necessary to assure the situation has been stabilized.
g. Record the event in the individual’s record and complete an Incident Report.
- Definition: A subpoena is a mechanism for obtaining records from someone who is not a party to a legal case. It is a form of a court order that directs a person named to appear at a designated time and place to testify, produce documents, or both. In responding to subpoenas, Everlast Recovery Center INC. must balance our duty to protect confidential information against the duty to respond to the order of the court.
a. A document subpoena or a “subpoena duces tecum” requires the person named in the subpoena to appear and produce documents.
b. A subpoena to testify or a “witness subpoena” requires the person named in the subpoena to appear and give testimony.
2. A properly executed subpoena will require a response within the time frame noted on the document.
3. The recipient of a subpoena will immediately route it to their direct supervisor who will review the document and ensure that it includes the following:
a. It is the original copy and is signed by the clerk of the court in which the action is pending.
b. It states the full name and address of the recipients of the subpoena as well as the action number and names of both the plaintiff and the defendant.
c. A “document subpoena” lists the documents to be produced as well as the time and place they are to be produced.
d. An officer authorized by law to execute the subpoena in the place where it is served.
4. If the merit of the subpoena is questionable, the supervisor will notify Cooperate Compliance Officer/ CEO and forward the subpoena. The CEO will determine if Everlast Recovery Center INC.’s legal counsel will be consulted for assistance. If the merit of the subpoena is questionable, contact will be made with the party who issued the document to determine if the information sought can be narrowed.
5. If a decision is made to contest the subpoena, Everlast Recovery Center INC.’s legal counsel will pursue action to quash or modify the subpoena.
6. If a notice is received indicating that a motion has been filed to quash the subpoena, the records should be sent only to the clerk of the court issuing the subpoena using the following procedure:
a. Place the records in a securely sealed envelope.
b. Attach a cover letter to the sealed envelope, which states that confidential health care records are enclosed and are to be held under seal pending the court’s ruling on the motion to quash the subpoena.
c. Place the sealed envelope and the cover letter in an outer envelope or package for transmittal to the court.
7. If an individual’s attorney issued the subpoena, the attorney should be asked to complete a Consent for Release of Information and have it signed by the consumer to protect both the consumer and the organization.
8. Responding to a Subpoena:
a. All responses to subpoenas will be made with ongoing consultation with the supervisory personnel and the organization’s legal counsel, if appropriate.
b. First, determine what records the subpoena seeks. If it seeks confidential records, confer with your direct supervisor and determine the statutes and regulations that apply to the records being sought.
c. If the records being sought are covered by Federal Law 42CFR, Part 2, governing substance abuse records, they may only be released if the subpoena is accompanied by a court order that complies with sections 2.61 through 2.64 of the law.
d. If the person is an active participant in services, notify them and/or their legal guardian of the request to ensure they have an adequate opportunity to assert his or her rights.
e. After informing the person served of the subpoena, determine if they have an interest in waiving confidentiality.
f. If the subject named in the document has consented to releasing the requested records, establish that all legal requirements have been met that permit the release of the records, and that specific details are available that communicate the exact documents or information that is to be released.
g. If documents are not confidential or you have a release from the person served, seek to excuse yourself from appearing by offering the records in advance of the proceeding. Never disclose any records in advance in which there are any questions concerning confidentiality.
h. Show up at the designated place and time noted on the subpoena.
i. Produce the designated documents at the designated place and time.
j. Refrain from disclosure of the records until you confer with the judge at the proceeding to determine whether the information should be released. In conferring with the judge, advise that the information sought is confidential and that the law prohibits you from disclosing it without a court order, and ask the judge to rule on whether records should be disclosed. Only if the judge orders you to disclose the information may you lawfully do so.
k. If you are appearing at a deposition in which a judge is not present, Everlast Recovery Center INC. management and/or legal counsel will submit written objections to the release of confidential information in advance of the deposition if the person served has not consented to the material’s release.
l. Since the court may retain the originals while the case is pending, copies are to be made of all records sought by the court. These are to be maintained in the record until the original records are returned. If you are subpoenaed to a deposition, the party who issued the subpoena is responsible for having copies made and does not have the right to obtain the originals.
C. Subpoenas, Testimony, and Privileged Communication:
- Definition: Privileged communication is conversation that takes place within the context of a protected relationship in which the disclosure of the content of that conversation may be deemed to do harm to the provider of the information. The concept of privileged as distinct from confidentiality is that it applies only to testimony in a judicial or quasi-judicial proceeding.
- If an employee is subpoenaed to testify in a judicial proceeding, and information is requested that the employee believes is confidential or privileged, the subpoena does not authorize the employee to disclose the information. The information may only be disclosed if a judge is present and rules that you must answer the questions.
- If subpoenaed for testimony in a deposition and questioned about what you know or believe to be confidential or privileged information, decline to answer the question. The party seeking the information bears the responsibility of seeking a court order (judge’s authorization) requiring the disclosure.
- Confessions of past crimes within a confidential relationship will only be reported if the crime is of such a nature that the public welfare is jeopardized.
- In civil matters, the parameters of privilege exist as defined by legal precedent and licensure requirements for licensed physicians and licensed clinical psychologist. Legal clarity is less defined for other mental health professionals and legal counsel will assist employees with preparation for testimony.
- In all cases of testimony, employees should assert privilege by respectfully stating that he/she believes the information is privileged within the mental health provider/client relationship and allow the court to rule if he/she must respond to questions.
- Under no circumstances should an employee testify regarding substance abuse treatment unless the court has conducted a hearing and issued an order pursuant to Federal Law 42CFR, Part 2.61. The employee in this circumstance will be represented by Everlast Recovery Center INC. legal counsel.
- If, during the course of testimony, a judge orders the staff to reveal substance abuse related information, the employee should inform the judge that special federal law applies to such information and request the opportunity to confer with legal counsel.
D. Search Warrants:
- Definition: A search warrant is a written court order that authorizes law enforcement officials to search a specific place for specific persons or materials. The search is conducted under the belief that there is probable cause to suspect that criminal activity or evidence of a crime may exist. Persons or items may be “seized” if they fit the description within the written order.
- If a law officer presents a search warrant and demands to access records of persons served by the organization, the following guidelines should be followed:
a. Immediately contact your supervisor and inform him/her of the search warrant.
b. Ask to see and read the warrant and determine if it contains the following:
- The time and location of the search
- The date of issuance of the search warrant
- The scope of the search and the object (s) to be seized, if found
- The reason for the search.
c. The supervisor will notify CEO and request assistance with resolving the situation so that neither the individual’s rights or the program’s integrity is compromised.
d. Ask the officers for time to contact the prosecuting attorney or supervisory law officer so that clarification of the warrant and the situation can be further discussed.
e. If the officers insist on entry or confiscation of records, do not resist. Refusing to obey the orders may constitute a crime.