specially concurring:
The majority holds that an authorization for release of medical records executed by plaintiff, M.A.K., in favor of plaintiffs insurance carrier, Royal Maccabees Life Insurance (Royal Insurance), is valid. Consequently, defendant, Rush-Presbyterian-St. Luke’s Medical Center (Rush-Presbyterian), is not liable to plaintiff for the release of plaintiffs medical records to Royal Insurance. I strongly disagree with the majority’s conclusion that the authorization is valid. The authorization does not comply with federal regulations concerning the release of alcohol- or drug-abuse treatment records. However, I join in the result reached by the majority because I believe plaintiff cannot maintain a private damages action where such action is grounded upon a violation of the federal regulations.
BACKGROUND
In October 1994, plaintiff applied for a disability insurance policy with Royal Insurance. In connection with the application, plaintiff executed an authorization for release of medical records. Plaintiff thereby authorized any “physician, medical practitioner, hospital, clinic, health care facility [or] other medical or medically related facility *** having information available as to diagnosis, treatment and prognosis with respect to any physical or mental condition and/or treatment” to release such information to Royal Insurance. The purpose of the authorization was to allow Royal Insurance “to determine eligibility for life or health insurance or a claim for benefits under a life or health policy.” Plaintiff agreed that the authorization would be valid for 21/a years from October 12, 1994.
On January 13, 1995, plaintiff was admitted to Rush-Presbyterian’s Behavioral Health Center — Du Page (Behavioral Health Center) for alcohol dependence. Plaintiff was released from the program on March 2, 1995. Plaintiff considered filing a claim with Royal Insurance for the treatment he received at the Behavioral Health Center. He contacted his insurance agent and requested a claim form. However, plaintiff later determined not to file a claim, and so informed Royal Insurance.
In April 1995, Royal Insurance forwarded a copy of the authorization to Rush-Presbyterian and requested the release of plaintiff’s medical records. Rush-Presbyterian released plaintiffs records to Royal Insurance, including records of plaintiffs treatment for alcohol dependence. The records contained a notation that the onset of plaintiffs alcohol dependence took place eight months prior to his admission to the Behavioral Health Center. Royal Insurance cancelled plaintiffs policy and refunded his premiums.
Plaintiff filed suit against Rush-Presbyterian and Royal Insurance. Plaintiff alleged that Rush-Presbyterian breached the physician-patient relationship by releasing his records without first advising plaintiff that it intended to do so. Plaintiff also sought damages for breach of privacy and negligent infliction of emotional distress. The trial court entered judgment on the pleadings in favor of Rush-Presbyterian.
ANALYSIS
A. General Designation
In enacting the Alcoholism and Other Drug Abuse and Dependency Act (the Illinois Act) (20 ILCS 301/1—1 et seq. (West 1994)), the Illinois legislature recognized the ills attendant to drug and alcohol abuse and the need for coordinated efforts in treatment and rehabilitation:
“Legislative Declaration. The abuse and misuse of alcohol and other drugs constitutes a serious public health problem the effects of which on public safety and the criminal justice system cause serious social and economic losses, as well as great human suffering. It is imperative that a comprehensive and coordinated strategy be developed under the leadership of a State agency and implemented through the facilities of federal and local government and community-based agencies *** to empower individuals and communities through local prevention efforts and to provide intervention, treatment, rehabilitation and other services to those who misuse alcohol or other drugs *** to lead healthy and drug-free lives and become productive citizens in the community.” 20 ILCS 301/1—5 (West 1994).
A key provision in the treatment of alcohol and drug abuse is maintaining the confidentiality of the patient’s records. To that end, section 30—5 of the Illinois Act provides in part,
“(bb) Records of the identity, diagnosis, prognosis or treatment of any patient maintained in connection with the performance of any program or activity relating to alcohol or other drug abuse or dependency education, early intervention, intervention, training, treatment or rehabilitation which is regulated, authorized, or directly or indirectly assisted by any Department or agency of this State or under any provision of this Act shall be confidential and may be disclosed only in accordance with the provisions of federal law and regulations concerning the confidentiality of alcohol and drug abuse patient records as contained in 42 U.S.C. Sections 290dd—3 and 290ee—3 and 42 C.F.R. Part 2.” 20 ILCS 301/30—5(bb) (West 1994).
Section 30—5 lists certain exemptions to the confidentiality requirement not applicable here. 20 ILCS 301/30—5(bb)(1) (West 1994). Section 30—5 also provides that, if the information at issue is not exempt, a disclosure can be made only
“(A) with patient consent as set forth in 42 C.ER. Sections 2.1(b)(1) and 2.31, and as consistent with pertinent State law.
(B) for medical emergencies as set forth in 42 C.F.R. Sections 2.1(b)(2) and 2.51.
(C) for research activities as set forth in 42 C.F.R. Sections 2.1(b)(2) and 2.52.
(D) for audit evaluation activities as set forth in 42 C.F.R. Section 2.53.
(E) with a court order as set forth in 42 C.F.R. Sections
2.61 through 2.67.” 20 ILCS 301/30 — 5(bb)(2) (West 1994). Lastly, section 30—5 provides that “[a]ny person who discloses the content of any record referred to in this Section except as authorized shall, upon conviction, be guilty of a Class A misdemeanor.” 20 ILCS 301/30—5(bb)(5) (West 1994).
As noted in the provisions cited above, the Illinois Act specifically and extensively refers to the federal law and regulations concerning alcohol- and drug-abuse treatment. Looking to federal law, the Public Health Service Act (the federal Act) (42 U.S.C. § 201 et seq. (1994)) protects the confidentiality of records of “the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any program or activity relating to substance abuse education, prevention, training, treatment, rehabilitation, or research, which is conducted, regulated, or directly or indirectly assisted by any department or agency of the United States.” 42 U.S.C. § 290dd—2 (1994), formerly 42 U.S.C. § 290ee—3 (1988). Such records may be disclosed “in accordance with the prior written consent of the patient with respect to whom such record is maintained, but only to such extent, under such circumstances, and for such purposes as may be allowed under regulations prescribed pursuant to subsection (g) of this section.” 42 U.S.C. § 290dd — 2(b)(1) (1994).
The regulations prescribed for the disclosure of a patient’s alcohol- or drug-abuse treatment records require that the written consent include “[t]he specific name or general designation of the program or person permitted to make the disclosure.” 42 C.F.R. § 2.31(a)(1) (2000). The written consent must also include “[t]he date, event, or condition upon which the consent will expire if not revoked before. This date, event, or condition must insure that the consent will last no longer than reasonably necessary to serve the purpose for which it is given.” 42 C.F.R. § 2.31(a)(9) (2000).
In the present case, plaintiff authorized any “physician, medical practitioner, hospital, clinic, health care facility [or] other medical or medically related facility *** having information available as to diagnosis, treatment and prognosis with respect to any physical or mental condition and/or treatment” to release such information to Royal Insurance. The majority finds this authorization complied with the requirement of the federal regulations that a written consent include “[t]he specific name or general designation of the program or person permitted to make the disclosure.” 42 C.F.R. § 2.31(a)(1) (2000).
Initially, the majority refers to Merriam-Webster’s Collegiate Dictionary for definitions of the words “general” and “designation.” The majority notes that the word “ ‘general’ ” means “ ‘involving, applicable to, or affecting the whole,’ ” “ ‘involving, relating to, or applicable to every member of a class, kind, or group.’ ” 198 Ill. 2d at 257, quoting Merriam-Webster’s Collegiate Dictionary 484 (10th ed. 1996). Also, the majority notes that the word “designation” is defined as “ ‘the act of indicating or identifying,’ ” and “ ‘a distinguishing name, sign, or title.’ ” 198 Ill. 2d at 257, quoting Merriam-Webster’s Collegiate Dictionary 313 (10th ed. 1996). The majority concludes,
“On its face, the phrase ‘general designation’ appears to be vague. The word ‘general’ refers to a broad classification. The word ‘designation’ refers to either the act of identifying or a distinguishing name or title. It is unclear how to reconcile these words. We will therefore look beyond the language of the regulation to determine the meaning of the phrase ‘general designation.’ ” 198 Ill. 2d at 258.
The majority next refers to the 1987 amendments to the federal regulations governing written consents. 40 C.F.R. § 2.31 (2000). Prior to 1987, the regulations required that a written consent include the name of the program which was to make the disclosure. The regulations, as amended, require that the written consent include “[t]he specific name or general designation of the program or person permitted to make the disclosure.” The comments to the amendments explain,
“ ‘This change will permit a patient to consent to disclosure from a category of facilities or from a single specified program. For example, a patient who chooses to authorize disclosure of all his or her records without the necessity of completing multiple consent forms or individually designating each program on a single consent form would consent to disclosure from all programs in which the patient has been enrolled as an alcohol or drug abuse patient. Or, a patient might narrow the scope of his or her consent to disclosure by permitting disclosure from all programs located in a specified city, from all programs operated by a named organization, or as now, the patient might limit ' consent to disclosure from a single named facility. ***
This change generalizes the consent form with respect to only one element without diminishing the potential for a patient’s making an informed consent to disclose patient identifying information. The patient is in [a] position to be informed of any programs in which he or she was previously enrolled and from which he or she is willing to have information disclosed.’ ” 198 Ill. 2d at 259, quoting Confidentiality of Alcohol and Drug Abuse Patient Records, 52 Fed. Reg. 21,796, 21,799 (June 9, 1987).
In light of these comments, the majority concludes,
“The intent of the amendments was to broaden the permissible wording of a written consent to disclosure of alcohol and drug treatment records. The amended regulation permits a more general description of the person or program to make the disclosure. This relaxed requirement serves the amendments’ stated purpose of relieving patients of the necessity of executing multiple consent forms or specifically naming each and every program or person entitled to make disclosure of alcohol or drug treatment records. The appellate court’s interpretation of the phrase ‘general designation’ gives too much emphasis to the word ‘designation.’ In doing so, the court essentially read the word ‘general’ out of the phrase. Construing the regulation in this manner undermines the intent of the 1987 amendments. The authorization here gives a general classification of the types of entities that are entitled to disclose plaintiff’s medical and nonmedical information. That is all the regulation requires.” 198 Ill. 2d at 259-60. The majority fails to consider, however, that the
phrase “general designation” is used in conjunction with the word “program.” The regulations require that the written consent include “[t]he specific name or general designation of the program” permitted to make the disclosure. (Emphasis added.) 42 C.F.R. § 2.31 (2000). Although the regulations do not define the phrase “general designation,” the regulations define the word “program.” The regulations provide,
“Program means:
(a) An individual or entity (other than a general medical care facility) who holds itself out as providing, and provides, alcohol or drug abuse diagnosis, treatment or referral for treatment; or
(b) An identified unit within a general medical facility which holds itself out as providing, and provides, alcohol or drug abuse diagnosis, treatment or referral for treatment; or
(c) Medical personnel or other staff in a general medical care facility whose primary function is the provision of alcohol or drug abuse diagnosis, treatment or referral for treatment and who are identified as such providers.” (Emphasis in original.) 42 C.ER. § 2.11 (2000).
The definition of the word “program” narrows the breadth of the term “general designation.” As defined in the regulations, a program is an entity “other than a general medical care facility.” The regulations further provide that a program is a unit within a general medical facility “which holds itself out as providing, and provides, alcohol or drug abuse diagnosis, treatment or referral for treatment,” and which is identified as such. Lastly, the regulations state that a program may also consist of medical personnel or other staff identified as providers of treatment for alcohol or drug abuse.
In the present case, the authorization plaintiff gave to Royal Insurance is overly broad. It does not refer to any particular medical practitioner or medical program involved in the treatment of alcohol or drug abuse. For that reason, the authorization fails to comply with the requirements of the regulations. Instead, the authorization makes available any and all records of medical treatment plaintiff received from any “medical or medically related facility.” The authorization thus contemplates the release of all treatment records gathered by medical or medically related facilities. Indeed, in my estimation, the authorization encompasses records from any facility with a medically related purpose. No record can be safely excluded under such a broad authorization.
In my view, the majority ignores the word “program” in construing the phrase “general designation.” Moreover, in construing the phrase “general designation,” the majority seems to read the word “designation” out of the regulation. The majority faults the appellate court because that court “essentially read the word ‘general’ out of the phrase.” 198 Ill. 2d at 260. However, the majority commits the same type of error in reading the word “designation” out of the phrase.
The majority also fails to give proper consideration to the purpose of the federal Act. In Ellison v. Cocke County, 63 F.3d 467, 470-71 (6th Cir. 1995), the court explained,
“The underlying purpose of the Drug Abuse Office find Treatment Act of 1972, from which the confidentiality provision of the antecedent Section 290ee-3 derived, was ‘to bring about the most effective deployment of federal resources against the devastating growth of drug abuse in the United State.’ [Citation.] The thrust of the Act was wholly administrative and bureaucratic: to coordinate federal drug abuse prevention efforts. [Citations.]
The confidentiality of medical records maintained in conjunction with drug treatment programs was essential to that endeavor. Congress felt that ‘the strictest adherence’ to the confidentiality provision was needed, lest individuals in need of drug abuse treatment be dissuaded from seeking help.”
The federal Act limits disclosure of a patient’s records to releases made with the prior written consent of the patient. Even with a written consent, however, disclosure is limited to “such extent, under such circumstances, and for such purposes as may be allowed under regulations prescribed pursuant to subsection (g)” of the section. 42 U.S.C. § 290dd—2(b)(1) (1994). In turn, subsection (g) provides,
“The Secretary shall prescribe regulations to carry out the purposes of this section. Such regulations may contain such definitions, and may provide for such safeguards and procedures *** as in the judgment of the Secretary are necessary or proper to effectuate the purpose of this section, to prevent circumvention or evasion thereof, or to facilitate compliance therewith.” 42 U.S.C. § 290dd—2(g) (1994).
The regulations are thus intended to further the purpose of the Act.
As noted above, the authorization plaintiff executed is quite broad. It authorizes the release of records of plaintiffs treatment at hospitals, clinics, health-care facilities, and other medical or medically related facility. To uphold the validity of such an authorization eviscerates the confidentiality provision and countermands the purpose of the federal Act.
The majority relies upon the 1987 amendments to the regulations and the purpose therefor to support the conclusion that the authorization is valid. The majority reasons,
“The amended regulation permits a more general description of the person or program to make the disclosure. This relaxed requirement serves the amendments’ stated purpose of relieving patients of the necessity of executing multiple consent forms or specifically naming each and every program or person entitled to make disclosure of alcohol or drug treatment records.” 198 Ill. 2d at 260.
Without questioning the majority’s view of the 1987 amendments, one wonders whether an amendment adopted for the convenience of patients should be interpreted in such a manner as to deprive the patients of the confidentiality of records that the legislature endeavored to protect in the first place. The purpose of the regulations is subordinate to the purpose of the federal Act. The regulations are intended to further the federal Act and cannot exist without reference to the Act and the purpose of the Act.
B. Time Reasonably Necessary
As noted above, the written consent must contain “[t]he date, event, or condition upon which the consent will expire if not revoked before. This date, event, or condition must insure that the consent will last no longer than reasonably necessary to serve the purpose for which it is given.” 42 C.F.R. § 2.31(a)(9) (2000).
The authorization plaintiff gave was for a period of 2V2 years from October 12, 1994. Plaintiff argues that a period of 2V2 years is substantially longer than the time period contemplated in the regulation. The majority rejects plaintiffs argument. The majority states,
“The authorization here complied with the regulation by stating the date upon which it would cease to be valid. The stated purpose for the authorization was to enable Royal to determine plaintiff’s eligibility for insurance and to evaluate any claims made by plaintiff under his insurance policy. We cannot say as a matter of law that a period of 2x/2 years for the purpose of evaluating any claims plaintiff might make under the insurance policy is invalid.” 198 Ill. at 263.
The majority ignores the fact that plaintiff did not make a claim for the treatment he received at the Behavioral Health Center. Thus, the more appropriate question here is whether a period of 21/2 years to determine plaintiffs eligibility for insurance is excessive. In light of the federal Act’s purpose, I believe that the time period at issue was not reasonably necessary to determine plaintiffs eligibility for insurance coverage.
I also believe that it is more appropriate to decide the question of reasonableness on the facts of each case. Factors such as the length of the policy may well inform the determination as to reasonableness. The majority holds, as a matter of law, that a period of 2xh years is valid for the purpose of evaluating a claim. Will this time period now become an industry standard? I, for one, question the wisdom of such a pronouncement.
C. Cause of Action
In count I of his complaint, plaintiff alleged that Rush-Presbyterian breached the physician-patient relationship by releasing his records without first advising plaintiff that it would do so. In count II of the complaint, for invasion of privacy, plaintiff alleged that Rush-Presbyterian wrongfully released his medical records without his prior authorization or consultation. In count III of the complaint, plaintiff sought damages for negligent infliction of emotional distress. Count III is also based upon the allegedly improper release of plaintiffs medical records. Since plaintiff authorized the release of the medical records, he can only maintain an action based on the wrongful release of the records if the authorization is invalid.
On its face, the authorization plaintiff gave Royal Insurance is valid. Plaintiff signed the authorization so that Royal Insurance would process plaintiff’s application for insurance and issue an insurance policy to plaintiff. The authorization is rendered invalid only if it fails to comply with the confidentiality provision of the federal Act and regulations. The majority finds that the authorization is valid. Implicit in this holding is that a plaintiff can maintain a cause of action for breach of the physician-patient relationship, invasion of privacy, or negligent infliction of emotional distress based upon the release of the plaintiffs medical records if the plaintiffs written consent fails to comply with the federal Act and regulations.
It should be noted, however, that the federal courts have determined that section 290dd—2 does not support a private damages action. Chapa v. Adams, 168 F.3d 1036, 1038 (7th Cir. 1999); Ellison, 63 F.3d at 471. In Ellison the court explained,
“Congress felt that ‘the strictest adherence’ to the confidentiality provision was needed, lest individuals in need of drug abuse treatment be dissuaded from seeking help. [Citation.] However, there is no indication that the confidentiality provision was intended to be enforceable by aggrieved private parties; the purpose of the provision was not to create private rights as much as it was to create public penalties in order to deter disclosure.” Ellison, 63 F.3d at 471.
See also Doe v. Broderick, 225 F.3d 440, 447 (4th Cir. 2000) (“We hold that section 290dd—2 does not create ‘enforceable rights, privileges, or immunities within the meaning of § 1983’ ”).
The alleged invalidity of the authorization is based upon the failure to comply with the confidentiality provision and the regulations controlling the disclosure of alcohol- and drug-abuse records. The majority fails to consider, however, whether it is appropriate to base a private damages action upon a violation of the federal Act and regulations. I agree with the federal decisions cited above that a private damages action based upon a violation of the federal Act and regulations is inappropriate. Accordingly, I would affirm the circuit court’s order granting judgment on the pleadings to Rush-Presbyterian.
CONCLUSION
I disagree with the majority’s conclusion that the authorization for the release of plaintiffs medical records is valid. The authorization fails to comply with the regulations concerning the release of medical records for the treatment of alcohol and drug abuse. The authorization is overly broad. Moreover, upholding an authorization of such breadth is contrary to the purpose of any alcohol- or drug-abuse program. As recognized by the legislature, the success of an alcohol- or drug-abuse program is largely dependent upon maintaining the confidentiality of the patient’s records. Because of the stigma associated with alcohol- or drug-abuse, a patient may be deterred from seeking treatment if the patient believes that his or her records will be disclosed to third parties. Although I strongly disagree with the majority’s analysis, however, I must join in the result the majority reaches. I am persuaded that a patient may not maintain a private damages action for the release of his medical records where the action is grounded upon a violation of 42 U.S.C. § 290dd — 2 and the federal regulations concerning the disclosure of alcohol- or drug-abuse treatment records. In my opinion, the trial court properly entered judgment on the pleadings in favor of Rush-Presbyterian. Accordingly, I concur in the result in this case.