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 E—Court Orders Authorizing Use and Disclosure

42 C.F.R. § 2.65

Procedures and criteria for orders authorizing use and disclosure of records to criminally investigate or prosecute patients

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(a) Application. An order authorizing the use or disclosure of patient records, or testimony relaying the information contained in those records, to investigate or prosecute a patient in connection with a criminal proceeding may be applied for by the person holding the records or by any law enforcement or prosecutorial official who is responsible for conducting investigative or prosecutorial activities with respect to the enforcement of criminal laws, including administrative and legislative criminal proceedings. The application may be filed separately, as part of an application for a subpoena or other compulsory process, or in a pending criminal action. An application must use a fictitious name such as John Doe, to refer to any patient and may not contain or otherwise use or disclose patient identifying information unless the court has ordered the record of the proceeding sealed from public scrutiny.

(b) Notice and hearing. Unless an order under § 2.66 is sought in addition to an order under this section, an order under this section is valid only when the person holding the records has received:

(1) Adequate notice (in a manner which will not disclose patient identifying information to other persons) of an application by a law enforcement agency or official;

(2) An opportunity to appear and be heard for the limited purpose of providing evidence on the statutory and regulatory criteria for the issuance of the court order as described in § 2.65(d); and

(3) An opportunity to be represented by counsel independent of counsel for an applicant who is a law enforcement agency or official.

(c) Review of evidence: Conduct of hearings. Any oral argument, review of evidence, or hearing on the application shall be held in the judge's chambers or in some other manner which ensures that patient identifying information is not disclosed to anyone other than a party to the proceedings, the patient, or the person holding the records. The proceeding may include an examination by the judge of the patient records referred to in the application.

(d) Criteria. A court may authorize the use and disclosure of patient records, or testimony relaying the information contained in those records, for the purpose of conducting a criminal investigation or prosecution of a patient only if the court finds that all of the following criteria are met:

(1) The crime involved is extremely serious, such as one which causes or directly threatens loss of life or serious bodily injury including homicide, rape, kidnapping, armed robbery, assault with a deadly weapon, and child abuse and neglect.

(2) There is a reasonable likelihood that the records or testimony will disclose information of substantial value in the investigation or prosecution.

(3) Other ways of obtaining the information are not available or would not be effective.

(4) The potential injury to the patient, to the physician-patient relationship and to the ability of the part 2 program to provide services to other patients is outweighed by the public interest and the need for the disclosure.

(5) If the applicant is a law enforcement agency or official, that:

(i) The person holding the records has been afforded the opportunity to be represented by independent counsel; and

(ii) Any person holding the records which is an entity within federal, state, or local government has in fact been represented by counsel independent of the applicant.

(e) Content of order. Any order authorizing a use or disclosure of patient records subject to this part, or testimony relaying the information contained in those records, under this section must:

(1) Limit use and disclosure to those parts of the patient's record, or testimony relaying the information contained in those records, which are essential to fulfill the objective of the order;

(2) Limit disclosure to those law enforcement and prosecutorial officials who are responsible for, or are conducting, the investigation or prosecution, and limit their use of the records or testimony to investigation and prosecution of the extremely serious crime or suspected crime specified in the application; and

(3) Include such other measures as are necessary to limit use and disclosure to the fulfillment of only that public interest and need found by the court.

[82 FR 6115, Jan. 18, 2017, as amended at 89 FR 12629, Feb. 16, 2024]
Notes of Decisions
Cited in 27 cases (2 in the last 5 years), 1977–2026 · leading case: United States v. Smith
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United States v. Smith (2007) ca1 · cites it 5× “42 C.F.R. § 2.65 (d). Although a court order was granted authorizing the release of the blue paper for use in the government’s investigation and prosecution of Smith, none of the findings required by the regulations were made.”
United States v. Ray L. Corona (1988) ca11 · cites it 4× “Under 42 C.F.R. § 2.65 (c) (1986 edition), a court may authorize disclosure of confidential drug treatment records for the purpose of conducting an investigation of or a prosecution for a crime of which the patient is suspected only if the court finds that all of four enumerated…”
State v. Robertson (1998) la · cites it 2× “Under 42 C.F.R. § 2.65 (a)(emphasis added), *37 An order authorizing the disclosure or use of patient records to criminally investigate or prosecute a patient may be applied for by the person holding the records or by any person conducting investigative or prosecutorial…”
Skakel v. Benedict (1999) connappct · cites it 4× “42 C.F.R. § 2.65 (a). Section 2.65 (d), formerly § 2.”
United States v. Bell (1993) cma · cites it 2× “42 C.F.R. § 2.65 relates to applications for judicial orders “authorizing the disclosure or use of patient records____” 42 C.”
People v. Jimenez (2008) coloctapp “" 42 C.F.R. § 2.65 (d) sets forth procedures and criteria for orders authorizing disclosure.”
State v. Rollinson (1987) conn “42 C.F.R. § 2.65 . 13 The state gave notice to the defendant and the hospital of its intention to introduce the records at trial, in accordance with the federal statute and regulations.”
United States v. Stephen J. Eide (1989) ca9 “2d at 565 ; 42 C.F.R. § 2.65 (d)(4) (1988). Here, disclosure would provide no injury to the physician-patient relationship or to the ability of the emergency room to provide services to other patients.”
People v. Silkworth (1989) nycrimct · cites it 3× “64) and one relating to criminal investigations and prosecutions based on such records (42 CFR 2.65). Although the Hospital argues that the applicable criteria are contained in the portion of the Regulations relating to disclosure and use of records to criminally investigate or…”
People v. D.L. (2016) nycrimct · cites it 2× “13 (c) (1), *338 42 CFR 2.65, and Public Health Law § 2785 (2) (a), Dr.”
In re Marvin M. (1998) connappct “2d 1283 (1987) (analyzing 42 C.F.R. § 2.65 , the equivalent of § 2.”
Danielson v. Superior Court (1988) arizctapp “…disclosed, it is clear that this limitation was intended to be applied only to criminal investigations. See 42 C.F.R. § 2.65 (c) (1987).”
Show all 27 citing cases →
— 42 C.F.R. § 2.65(c) — 1 case
Commonwealth v. Clifford (2001) masssuperct
— 42 C.F.R. § 2.65(c)(1) — 1 case
United States v. Hopper (1977) ilnd
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.