C.F.R. » Title 42 » CHAPTER I—PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES › SUBCHAPTER A—GENERAL PROVISIONS › PART 2—CONFIDENTIALITY OF SUBSTANCE USE DISORDER PATIENT RECORDS › Subpart B—General Provisions

42 C.F.R. § 2.15

Patients who lack capacity and deceased patients

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(a) Adult patients who lack capacity to make health care decisions—(1) Adjudication by a court. In the case of a patient who has been adjudicated as lacking the capacity, for any reason other than insufficient age, to make their own health care decisions, any consent which is required under the regulations in this part may be given by the personal representative.

(2) No adjudication by a court. In the case of a patient, other than a minor or one who has been adjudicated as lacking the capacity to make health care decisions, that for any period suffers from a medical condition that prevents knowing or effective action on their own behalf, the part 2 program director may exercise the right of the patient to consent to a use or disclosure under subpart C of this part for the sole purpose of obtaining payment for services from a third-party payer or health plan.

(b) Deceased patients—(1) Vital statistics. These regulations do not restrict the disclosure of patient identifying information relating to the cause of death of a patient under laws requiring the collection of death or other vital statistics or permitting inquiry into the cause of death.

(2) Consent by personal representative. Any other use or disclosure of information identifying a deceased patient as having a substance use disorder is subject to the regulations in this part. If a written consent to the use or disclosure is required, that consent may be given by the personal representative.

[82 FR 6115, Jan. 18, 2017, as amended at 83 FR 251, Jan. 3, 2018' 89 FR 12622, Feb. 16, 2024]
Notes of Decisions
Cited in 2 cases, 2000–2002 · leading case: Ctr. for Legal Advocacy v. Earnest, 188 F. Supp. 2d 1251 (D. Colo. 2002).
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Ctr. for Legal Advocacy v. Earnest, 188 F. Supp. 2d 1251 (D. Colo. 2002). · cites it 7× “Doe, as Plaintiff is performing a “death investigation” in accordance with 42 C.F.R. § 2.15 (b)(1). 3 Defendants claim that Plaintiff has misconstrued the exception contained in 42 C.”
Opinion No. (2000) (Okla. Att’y Gen. 2000). · cites it 2× “See 42 C.F.R. 2.15 (b) (1999). 5 Consent to the disclosure may be given by the executor, administrator, or other personal representative appointed under applicable State law; if there has been no such appointment, consent may be given by the patient's spouse, or if none, by any…”
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