Opinion
No. T11-CP04-012123-A
September 6, 2006
MEMORANDUM OF DECISION
On August 25, 2006, this court denied the motions of the commissioner of the department of children and families ("DCF") seeking disclosure of the respondent mother's legally protected confidential documents and information pertaining to her alleged alcohol and substance abuse diagnosis and treatment, and concerning alleged mental health issues diagnosis and treatment, including but not limited to attendance at programs recommended by DCF. In re Reginald H., Docket No. T11-CP04-012123-A, Superior Court, Child Protection Session at Middletown (Bear, J., August 25, 2006).
On August 31, 2006, DCF filed a motion for clarification or articulation concerning "the effect of In re Marvin M. [ 48 Conn.App. 563, 711 A.2d 756 (1998), cert. denied 245 Conn. 916, 729 A.2d 900 (1998)] (" Marvin") on this Court's order . . ." relating to alcohol and substance abuse records. Such motion is granted, and the court's "clarification or articulation" is set forth below.
In Marvin, the Appellate Court relied on 42 C.F.R. section 2.64(d) as a basis to affirm the trial court's release, after an in camera review, of (1) intake records, (2) discharge records, (3) attendance records, (4) results of drug screen tests, and (5) records relating to compliance or non-compliance with treatment programs suggested to facilitate the respondents' rehabilitation and reunification limited "to treatment that each respondent received between the date of commitment and the date when the [termination] petitions were filed." Marvin M., supra, 48 Conn.App. at 573-74.
Section 2.64(d) provides that to determine whether good cause exists to release "objective data" rather than confidential communications concerning alcohol and substance abuse diagnosis and treatment, the trial court must find that
"`Distinguishing between confidential communications and other . . . information still has a significant effect: Ordinarily, run-of-the-mill objective data (i.e., not confidential communications) is disclosable if the Government meets the "good cause" test established in [section] 290dd-2(b)(2)(C); confidential communications, on the other hand, are disclosed only if the "good cause" test is met and one of the three express circumstances of disclosure outlined in [section] 2.63(a) is also established.' (Emphasis in original.) [ In re August 1993 Regular Grand Jury, 854 F.Sup. at 1384]." Marvin, supra, 48 Conn.App. at 572. The three "express circumstances" referred to are "(1) The disclosure is necessary to protect against an existing threat to life or of serious bodily injury . . . (2) The disclosure is necessary in connection with the investigation or prosecution of an extremely serious crime . . . or (3) The disclosure is in connection with litigation or an administrative proceeding in which the patient offers testimony or other evidence pertaining to the content of the confidential communications . . ." Id.
"(1) Other ways of obtaining the information are not available or would not be effective; and
(2) The public interest and need for disclosure outweigh the potential injury to the patient, the physician-patient relationship and the treatment services." Marvin M., supra, 48 Conn.App. at 572-73.
In this case, as in Marvin, 48 Conn.App. at 572, DCF sought intake records, discharge records, attendance records, drug and alcohol test results and records indicating compliance or non-compliance with and progress in treatment. While for federal law purposes attendance records, intake records, discharge records and records indicating compliance or non-compliance with and progress in treatment may contain "run-of-the-mill objective data," it is not clear to the court that each such record may not also contain some confidential communications. Thus even if a document contains intake, attendance or discharge information, or compliance or progress information, it may contain other information that makes it in whole or in part a record of one or more confidential communications. Those issues, however, are not before the court in this case, because on August 25, 2006, the court specifically found that:
In Marvin, the Appellate Court noted that "case law from other jurisdictions on the subject supports the view that courts must distinguish, as a threshold matter, between confidential and nonconfidential communications." Marvin, supra, 48 Conn.App. at 571.
"3. Based on the information set forth in documents contained in the case file, and also alleged in great detail by DCF, see pages 1-5 above, including but not limited to social studies that are admissible into evidence at trial pursuant to Connecticut Practice Book section 35a-9, DCF has a voluminous amount of information about the mother and her behavioral history. Because of such voluminous information available to DCF prior to the mother's December 2005, incarceration, and because the mother, after such incarceration, signed releases prepared by DCF seemingly intended to allow confidential information to be submitted by the corrections facility to DCF, and by DCF to such facility, the public interest, the interest of justice and the need for disclosure of the information does not outweigh any potential injury to the mother and to her relationship with her treatment providers. The absence of such confidential information is not likely to hamper DCF from presenting its case or the court from making a decision after trial . . ."
"4. Because both before and after the filing of the termination of the parental rights petition the mother cooperated with DCF in signing requested releases, DCF did have a way, other than through an order of the court at this time, to obtain the confidential information it allegedly deems to be crucial to its case." Reginald H., supra, pages 18-19 (manuscript copy of decision).
Thus the court specifically found that DCF did not satisfy its burden of proof with respect to each of the requirements set forth in 42 C.F.R. section 2.64(d).
See, e.g., In re James T., Jr., Child Protection Session, Judicial District of Middlesex at Middletown (Foley, J., August 18, 1997) ( 20 Conn. L. Rptr. 386):
"Under the regulations, a court may order disclosure of confidential communications made by a patient to a federally funded drug treatment program only if one of the exceptions set forth under 42 C.F.R. § 2.64 applies. In the absence of consent, `[a]n order authorizing the disclosure of patient records for purposes other than criminal investigation or prosecution may be applied for by any person having a legally recognized interest in the disclosure which is sought.' 42 C.F.R. § 2.64(a). The court may order such disclosure `only if the court determines that good cause exists. To make this determination the court must find that: (1) [o]ther ways of obtaining the information are not available or would not be effective; and (2) [t]he public interest and need for the disclosure outweigh the potential injury to the patient, the physician-patient relationship and the treatment services.' 42 C.F.R. § 2.64(d). In Re Caresse B., 44 Conn. Sup. 468, 691 A.2d 606 (1996).[fn 2] The respondent has failed to show the unavailability of other methods of obtaining the information. Absent this showing, this court need not proceed to balance the need for disclosure with the potential injury to the patient. Even with a showing of unavailability, it would take a considerable showing, which has not been yet advanced, that would outweigh the public interest values that are implicated, as well as, the potential injury to the patient, the physician-patient relationship and the treatment services. 42 C.F.R. § 2.64(d). Consequently, the respondent is not entitled to the disclosure of Ms. B.'s records regarding alcohol and substance abuse treatment." (Footnote omitted.)
The court notes that DCF did not attempt to establish a predicate for the application of the provisions of 42 U.S.C. section 2.64(d), e.g., that any of the entities allegedly possessing alcohol and drug records pertaining to the mother were "federally funded" and that in fact each such entity received federal funds specifically for or relating to its alcohol or drug treatment services. The court also notes that DCF did not offer any evidence in support of its claims pursuant to section 2.64(d). In Vishnefsky v. Vishnefsky, Docket No. 31 94 95, Judicial District of Danbury (Axelrod, J., May 22, 1996) and In re Caresse B., 44 Conn.Sup. 468, 469, 471, 691 A.2d 606 (1996), motions for disclosure of substance abuse records were denied because of failure to present evidence. In Caresse B., supra, 44 Conn.Supp. at 471, Judge Foley commented as follows:
"As indicated earlier, no testimony was offered by the petitioner in support of the motions for disclosure. There is no indication that there has been a waiver of the respondent's privilege or that any releases have been signed in favor of the petitioner. It is quite possible that the information sought has been or could be obtained through other sources such as the psychological evaluation, the social study or other documents available to the petitioner. It is often quite true that the information sought is merely cumulative of other available information. It may be that the respondent's mental status is not in issue or that alcohol or drugs have not been an issue. Even if counsel for the petitioner had made representations with respect to those necessary findings, `[i]t is well settled that representations of counsel are not, legally speaking, `evidence'. Cologne v. Westfarms Associates, 197 Conn. 141, 154, 496 A.2d 476 (1985). In the present case, the court concludes that the petitioner has failed to introduce evidence that (1) addresses the mental health of the respondent as an issue regarding the motion for disclosure of psychiatric and psychological records, (2) addresses which exception to the federal regulations applies with respect to the motion for disclosure of drug and alcohol treatment records, and (3) that good cause exists for disclosure in that the information is not available through other sources and the need for the disclosure outweighs the potential injury to the patient, the physician-patient relationship and the treatment facility."