ILLINOIS
SUPREME COURT INTERPRETS
42 CFR PART 2 CONSENT REQUIREMENTS
The Illinois Supreme Court recently upheld the validity of a general
consent to release substance abuse treatment records and the subsequent
release of those records even though the consent had been signed
and dated three months prior to the patient’s admission for
substance abuse treatment. The issue presented to the court in M.A.K.
v. Rush-Presbyterian-St. Luke’s Medical Center [No. 90527,
Illinois Supreme Court, December 20, 2001] was whether the consent
met the requirements of 42 CFR Part 2. The consent authorized “any
physician, medical practitioner, hospital, clinic, health care facility,
or other medical or medically related facility” to disclose
to the patient’s insurance company any and all information
as to “diagnosis, treatment and prognosis with respect to
my physical or mental condition and/or treatment of me…and
any other non-medical information of me…” The consent
was valid for two and one-half years from the date of signing.
Relying upon this consent, Rush released M.A.K.’s medical
and other records, which included records of his substance abuse
treatment, to his insurance company, Royal. Based on the records
they received from Rush, Royal cancelled M.A.K.’s disability
policy. M.A.K. filed a suit alleging Rush breached its physician-patient
relationship with him when it released the substance abuse treatment
records without consultation or prior consent.
In determining whether the language of the consent with Federal
substance abuse statute and regulations, the Court noted that the
statute requires that a written consent for release of alcohol and
drug treatment records give the “specific name or general
designation” of the person or program authorized to make the
disclosure of such records. Based on the comments explaining the
1987 amendments to the regulations, the Court decided that M.A.K.’s
consent was valid since it gave a “general classification
of the types of entities that are entitled to disclose his medical
and non-medical information” which is all the statute requires.
As to M.A.K.’s argument that the consent failed to specify
how much and what type of information is to be disclosed, the Court
found that there is nothing in the statute that indicates that “a
broad description of the information to be released is impermissible”.
The Court also concluded that the consent complied with the statute
since it gave an expiration date. The Court did not find the two
and a half-year period to go beyond the “reasonably necessary
period.”
A second issue presented to the Court was that M.A.K.’s substance
abuse records were generated after he signed the consent for release
of medical records to Royal. M.A.K. argued that the consent could
not cover records that were not in existence at the time he signed
the consent. Therefore, he could not have waived his right to confidentiality
and because he had received no notice from Rush that they intended
to release these records, he could not have exercised his right
to revoke the consent. The Court rejected this and found that M.A.K.
had a right not to sign the consent and that he maintained the right
to revoke the consent at any time.
This case also included a special concurrence and a dissent. While
these arguments are not binding, they are worth noting. The special
concurrence and the dissent argued that the federal laws require
that the consent refer to a particular medical program, practitioner
or category of programs in order to be valid and that the Majority
erred in stating that the two and a half year period is valid for
the purpose of evaluating a claim. They believed that this “reasonably
necessary” period should be determined on the facts of each
case. Finally, the dissent argued that there can be no informed
consent for disclosure if the records do not exist at the time the
consent is signed.
In spite of the holding in this case, we would still recommend
that providers continue to:
1. be as specific as possible in designating the program or person
permitted to make a disclosure;
2. include an expiration date that extends no more than one year;
and
3. have a client sign a new consent form for subsequent admissions.
Please feel free to contact the Firm if you would like further
information regarding this case.
|