SSR 73-48: Section 1106 (42 U.S.C. 1306).—Confidentiality of Patient Records—Drug Abuse Office and Treatment Act of 1972
20 CFR 401.1 et. seq.
Where medical records concerning drug abuse are received by the Social Security Administration from any source for use in the administration of the Social Security Act, held, (1) such records are not subject to the disclosure provisions of section 408 of Drug Abuse Office and Treatment Act of 1972 (P.L. 82-255) unless such records are maintained in connection with the performance of a drug abuse prevention function authorized or assisted under any provision of the Drug Abuse Act or any act amended by it; (2) in those situations where disclosure of such records is subject to both Regulation No. 1 and section 408, the provision with the greater restrictiveness with respect to whether and how the information may be disclosed is controlling.
A question has been raised as to a possible conflict in the application of section 408 of the Drug Abuse Office and Treatment Act of 1972 (Public Law 92-255), and Regulation No. 1 (20 CFR 401.1 et seq.) of the Social Security Administration, with respect to patient records maintained in connection with the performance of a drug abuse prevention function authorized or assisted under P.L. 92-255 or any act amended by it.
Section 408, supra, is applicable to records "which are maintained in connection with the performance of any drug abuse prevention function authorized or assisted under any provision of [P.L. 92-255]." Any record or any entry on any record which is maintained under these circumstances and which deals with "identity, diagnosis, prognosis or treatment" of any patient, is subject to the limitations on disclosure. These limitations are to be strictly construed, as the Joint Explanatory Statement of the Committee of Conference on P.L. 92-255 made clear. House Rept. No. 92-920, March 15, 1972, p. 33.
Accordingly, should the Social Security Administration receive such a record for use in connection with a social security purposes, it is legally obligated to maintain the confidentiality of that record. On the other hand, if, in connection with the social security program, the Administration receives evidence or records, such as from a treating physician, indicating drug abuse by the individual to whom the record relates, such record would not be subject to the prohibitions on disclosure in section 408, supra, unless the records were generated by, or are maintained in connection with, the performance of a function authorized or assisted under the Drug Abuse Act or any act thereby amended. Likewise, medical information concerning treatment for drug abuse furnished to the Administration by institutions, agencies, or physicians for the adjudication of claims would not be subject to the limitations on disclosure in section 408 as long as such institutions, agencies, or physicians did not generate, or were not maintaining, the information for purposes of P.L. 92-255.
In those instances where both Regulations No. 1 and section 408 apply, the provision with the greater restrictiveness with respect to whether and how the information may be disclosed, is controlling. This is consonant with the purpose as well as the language of both section 408 of P.L. 92-255 and section 1106 of the Social Security Act since the clear policy of both statutes is to restrict disclosure.
To illustrate, under section 408(b)(1) of P.L. 92-255, if the patient has given his written consent, the content of his record "may" be disclosed to medical personnel for treatment and to governmental personnel for the purpose of receiving benefits. Such disclosure, it should be noted, is permitted, not mandated. Therefore, in those instances where Regulation No. 1 is more "restrictive" than section 408, e.g., where consent of the medical source would be required, in addition to consent of the patient, and the consent of the medical source has not been obtained, disclosure of the information is prohibited, on authority of Regulation No. 1.
Again, under section 408(b)(2)(C) records may be released to a court of competent jurisdiction without the patient's consent if authorized by an appropriate order after an application showing good cause therefor. But where the consent of both patient and source is required by Regulation No. 1 before such records may be released by the Administration, such consents must be obtained prior to disclosure. In such situations, section 408 would permit such disclosure without consent but Regulation No. 1 mandates such consent before disclosure. Since Regulation No. 1 is more "restrictive," its provisions would control.
On the other hand, where section 408 is the more restrictive, the restrictions on disclosure in that section control with respect to all records generated or maintained in connection with the performance of a function authorized or assisted by P.L. 92-255. Where medical information is furnished for the adjudication of claims or other social security purposes by participating institutions or agencies under the Drug Abuse Act, the patient's consent would be required before his record can be released by the Administration.
Section 4013(g)(2) of Regulations No. 1 permits, inter ali, the disclosure of medical (including drug abuse) information to a State agency for vocational rehabilitation purposes under some circumstances. Whether such records disclosable under this section would be disclosable at all under section 408, would depend on whether a vocational rehabilitation program provides "benefits" within the meaning of that term in section 408(b)(1)(B). Even a determination that a regimen, i.e., services prescribed for a patient under a vocational rehabilitation program, constitutes a "benefit" for purposes of section 408, would require that patient's consent before the Administration could disclosure the record.