[Code of Federal Regulations]
[Title 42, Volume 1, Parts 1 to 399]
[Revised as of October 1, 2000]
From the U.S. Government Printing Office via GPO Access
[CITE: 42CFR2.67]

[Page 25-26]
 
                         TITLE 42--PUBLIC HEALTH
 
                    CHAPTER I--PUBLIC HEALTH SERVICE,
                        DEPARTMENT OF HEALTH AND
                             HUMAN SERVICES
 
PART 2--CONFIDENTIALITY OF ALCOHOL AND DRUG ABUSE PATIENT RECORDS--Table of Contents
 
         Subpart E--Court Orders Authorizing Disclosure and Use
 
Sec. 2.67  Orders authorizing the use of undercover agents and informants to criminally investigate employees or agents of a program.

    (a) Application. A court order authorizing the placement of an 
undercover agent or informant in a program as an employee or patient may 
be applied for by any law enforcement or prosecutorial agency which has 
reason to believe that employees or agents of the program are engaged in 
criminal misconduct.
    (b) Notice. The program director must be given adequate notice of 
the application and 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), unless the application 
asserts a belief that:

[[Page 26]]

    (1) The program director is involved in the criminal activities to 
be investigated by the undercover agent or informant; or
    (2) The program director will intentionally or unintentionally 
disclose the proposed placement of an undercover agent or informant to 
the employees or agents who are suspected of criminal activities.
    (c) Criteria. An order under this section may be entered only if the 
court determines that good cause exists. To make this determination the 
court must find:
    (1) There is reason to believe that an employee or agent of the 
program is engaged in criminal activity;
    (2) Other ways of obtaining evidence of this criminal activity are 
not available or would not be effective; and
    (3) The public interest and need for the placement of an undercover 
agent or informant in the program outweigh the potential injury to 
patients of the program, physician-patient relationships and the 
treatment services.
    (d) Content of order. An order authorizing the placement of an 
undercover agent or informant in a program must:
    (1) Specifically authorize the placement of an undercover agent or 
an informant;
    (2) Limit the total period of the placement to six months;
    (3) Prohibit the undercover agent or informant from disclosing any 
patient identifying information obtained from the placement except as 
necessary to criminally investigate or prosecute employees or agents of 
the program; and
    (4) Include any other measures which are appropriate to limit any 
potential disruption of the program by the placement and any potential 
for a real or apparent breach of patient confidentiality; for example, 
sealing from public scrutiny the record of any proceeding for which 
disclosure of a patient's record has been ordered.
    (e) Limitation on use of information. No information obtained by an 
undercover agent or informant placed under this section may be used to 
criminally investigate or prosecute any patient or as the basis for an 
application for an order under Sec. 2.65 of these regulations.