Employer Request, Subpoena, and a Custody Case
You are a counselor at a licensed outpatient program that receives federal funds. Tanya, 29, was referred by her employer after a positive cocaine test under a workplace policy. She signed a treatment consent but not a release to her employer. The HR director calls and asks for her attendance record, drug test results, and whether she is 'complying.' Later that day, the program receives a subpoena for Tanya's complete record in a custody case involving her 6-year-old. Tanya's sister is the petitioner. Tanya is in the waiting room and asks what is happening. She says, 'My sister is trying to take my daughter because of this.' The program is federally assisted and subject to 42 CFR Part 2. Your clinical supervisor is on vacation.
1. How do you respond to the employer's request?
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A referral from an employer is not a release of information. Without Tanya's specific written consent, I cannot confirm that she is a client, provide attendance, disclose drug test results, or characterize compliance. I would explain 42 CFR Part 2 and program policy, thank the HR director, and offer to discuss the request with Tanya. I would not imply that refusal means noncompliance. I would review with Tanya what her employer actually requires and whether she wants to sign a time-limited, specific release. If the program is acting as a DOT SAP, separate federal rules may apply, but I would not assume that; I would verify with a supervisor or legal counsel. I would document the call and the decision. If Tanya refuses, I would support that choice and help her understand possible employment consequences without threatening her.
2. What must happen before you release anything in response to the subpoena?
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A subpoena is not a court order that automatically authorizes release of substance use disorder records. Under 42 CFR Part 2, the program generally needs a valid court order that meets the regulatory criteria, and the client must receive notice and an opportunity to object. I would not release the record on the subpoena alone. I would notify Tanya, explain the subpoena, and consult legal counsel or the program director because my supervisor is away. I would preserve the record and document its receipt. If Tanya opposes release, counsel can help her seek to quash or limit it. If a proper order issues, I would release only the information authorized, not the entire record by default. I would also avoid discussing the case with Tanya's sister, who is not the client. Protecting the record is both a legal and ethical duty.
3. What do you tell Tanya in the waiting room, and what do you document?
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I would be honest and plain: an employer called requesting information, and a subpoena arrived for her records; no information has been released. I would explain that she has rights under 42 CFR Part 2, that I will consult counsel, and that she should consider legal advice about the custody case. I would not predict the outcome or say the subpoena is 'nothing.' I would ask what she wants and assess her distress, safety, and whether she needs support. I would avoid disclosing anything to her sister and would not confirm to the sister that Tanya is a client. Documentation should include the employer call, the subpoena receipt, what I told Tanya, her response, the legal consult plan, and that no records were released. I would also follow up with my supervisor. Transparency with the client is essential, but it does not mean handing over the file.