A Sample Part 2 Order

In my prior post, I promised that I would offer a draft Part 2 order that complies with the regulation’s requirements for an investigator looking into fraud. The actual attachment has a few additional notes for law enforcement as comments, but the substance of that sample order follows below.

IN THE MATTER OF:

APPLICATION FOR  AN ORDER AUTHORIZING THE DISCLOSURE AND USE OF SUBSTANCE ABUSE TREATMENT RECORDS.

Case No.

ORDER

Upon consideration of the [Jurisdiction] (“State”)ex parte Application for an Order (referred to herein as the “Government’s Application”) under 42 U.S.C. § 290dd-2(b )(2)(C) and 42 C.F.R. § 2.66 authorizing disclosure to the State and [state/federal] law enforcement personnel of substance abuse patient records that will be obtained in the course of the investigation of targets and subjects identified in the Government’s Application, and finding that:

1. The investigation being conducted is within the lawful jurisdiction of the government authority seeking access to the records, as provided in 42 C.F.R. § 2.66(a)(l).

2. There is reason to believe that the patient records sought are needed to provide material evidence that is relevant to a legitimate law enforcement inquiry.

3. The Government’s Application was filed under seal pursuant to 42 C.F.R. § 2.66(b), in order to avoid alerting the targets of this investigation.

4.         Good cause exists for the Order in that:

a)         There are no other effective ways of obtaining the information sought, as provided in 42 C.F.R. § 2.64(d)(l); and

b) The public interest and the need for disclosure of the records outweigh the potential injury to the patients, to the physician-patient relationship and to the treatment services, as provided in 42 C.F.R. § 2.64(d)(2).

It is THEREFORE ORDERED that:

1. The State may obtain and use all substance abuse and health care patient records relating to the investigation of fraudulent billing practices, as described in the Government’s Application, in the ongoing criminal investigation and any prosecutions flowing therefrom subject to the restrictions below.

2. As provided in 42 C.F.R. § 2.64(e)(l), disclosure shall be limited to those parts of the patients’ records which are essential to the investigation and prosecution of the offenses under investigation, specifically healthcare fraud and related offenses in violation of [list Statutes]

3. As provided in 42 C.F.R. § 2.64(e)(2), access to the records, and any memorialization of these records shall be limited to the [list relevant offices and agencies:, Attorney General’s office,, federal law enforcement personnel, and state law enforcement personnel] involved in the investigation, and any subsequent related prosecutions, and to such experts as the State may need to consult to analyze, interpret, or organize the information contained in the records.

4. As provided in 42 C.F.R. § 2.64( e )(3), the State shall follow the procedures outlined in Exhibit # of the Government’s Application in this case, which are necessary to limit disclosure for the protection of the patient, the physician-patient relationship and the treatment services.

5. As provided in 42 C.F.R. § 2.66(d)(l), the State shall delete patient identifying information from any documents made available to the public.

6. As provided in 42 C.F.R. § 2.66(d)(2), the State shall refrain from using any information obtained pursuant to this Order to conduct any investigation or prosecution of a patient, or as the basis for an application for an order under 42 C.F.R. § 2.65.

7. The State shall notify the program, the person holding the records, and any patient whose records are disclosed pursuant to this Order of the fact of disclosure, as provided in 42 C.F.R. § 2.66(b), within one year of entry of this Order. Further, the State shall notify such individuals and/or entities of the right to seek revocation or amendment of this order. This notice shall be provided using a letter similar to the one attached as Exhibit 3 to the Government’s Application. The period of delay for notification may be extended on motion of the State for good cause shown regarding the need for further delay.

8. The Government’s Application and this Order shall remain under seal, except that :

            a) Copies shall be provided to the US Attorney’s Office and law enforcement as necessary to the performance of their official duties;

            b) Pursuant to 42 C.F.R. § 2.61(a), a copy of this Order may be served alongside legal process (e.g., subpoena, search warrant) to obtain patient treatment records as authorized herein; and,

            c) If requested, as part of the notification process as described in paragraph 7 of this Order.