b.) Use of Undercover Agents & Informants to Criminally Investigate a Program’s Employees or Agents
No program may knowingly employ, or enroll as a patient, any undercover agent or informant except as specifically authorized by a court order.159
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Application
Any law enforcement or prosecutorial agency that believes that employees or agents of a program are engaged in criminal misconduct may apply for a court order authorizing the placement of an undercover agent or informant in that program as an employee or patient.160
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Notice and Opportunity to Provide Evidence
Adequate notice and an opportunity to appear and provide evidence on the statutory and regulatory criteria for the issuance of the court order must be given to the program director, unless the application asserts a belief that the director:
- Is involved in the criminal activities to be investigated;161 or
- Will disclose the proposed placement of an agent or informant to the employees or agents who are suspected of criminal activities.162
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Criteria for the entry of the order
The court must determine that good cause exists by finding that:
- There is reason to believe that an employee or agent of the program is engaged in criminal activity;163
- Other ways of obtaining evidence of this criminal activity are unavailable or would be ineffective;164 and
- 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 treatment services.165
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Content of order
An order must:
- Specifically authorize the placement of an undercover agent or an informant;166
- Limit the total period of the placement to six months;167
- 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;168 and
- Include measures to limit any potential disruption of the program by the placement and any potential for a real or apparent breach of patient confidentiality.169
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Other limitations
Information obtained by an undercover agent or informant (whether or not that agent or informant is placed in a program pursuant to an authorizing court order) may not be used to criminally investigate or prosecute any patient or as the basis for an application for an order to disclose patient records to criminally investigate or prosecute patients.170
Footnotes
- 159. 42 CFR § 2.17(a).
- 160. 42 CFR § 2.67(a).
- 161. 42 CFR § 2.67(b)(1).
- 162. 42 CFR § 2.67(b)(2).
- 163. 42 CFR § 2.67(c)(1).
- 164. 42 CFR § 2.67(c)(2).
- 165. 42 CFR § 2.67(c)(3).
- 166. 42 CFR § 2.67(d)(1).
- 167. 42 CFR § 2.67(d)(2).
- 168. 42 CFR § 2.67(d)(3).
- 169. 42 CFR § 2.67(d)(4).
- 170. 42 CFR §§ 2.17(b), 2.67(e).
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