Opinion
21-P-983
10-25-2022
TOWN OF BELMONT v. JANE DOE & another. [1]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The Town of Belmont (town) terminated the defendant's employment as a police officer because it asserted that she was untruthful when she answered questions about the use of illegal drugs and alcohol on her employment application. The defendant, Jane Doe, challenged the town's decision and, during the ensuing administrative proceedings before the Civil Service Commission (commission), the town brought this action requesting authorization pursuant to 42 U.S.C. § 290dd-2 and 42 C.F.R. § 2.64 to introduce a medical record indicating that Doe had been treated for cocaine addiction before she was hired. Following a nonevidentiary hearing, a Superior Court judge determined that the town had met its burden under the statute and authorized the requested use of the medical record subject to certain conditions to protect Doe's confidentiality. On appeal Doe argues that the judge's order failed to adhere to the requirements of 42 U.S.C. § 290dd-2. We affirm.
Background.
Doe was hired by the town as a police officer in 2013. In the process of applying for the position, Doe completed an employment application in which she responded "no" to the following three questions: (1) "Have you ever Used or Possessed any illegal drugs/narcotics?", (2) "Have you ever used a prescription drug without a prescription?", and (3) "Have you ever been in an accident while under the influence of alcohol?"
In 2020, the town's police chief reviewed Doe's personnel file and found a medical record dated March 15, 2016, that included information regarding Doe's prior use of illegal drugs.Specifically, the record indicated that Doe had a diagnosis of "[c]ocaine dependance in remission." The record also included a note from 2011 reporting that Doe had a history of cocaine, Adderall, and Vicodin dependency. The record further revealed that Doe had been in a motor vehicle accident and that she admitted to being under the influence of alcohol at the time. Doe was placed on administrative leave when this information was discovered. Ultimately, the chief determined that Doe had provided false information when she submitted her employment application and recommended to town administrators that her employment be terminated.
Although Doe consented to the release of her medical records through a HIPAA authorization form that she executed when she applied for medical leave for a job-related injury, she claims that her consent was invalid because that authorization did not comply with a number of HIPAA requirements. See 42 C.F.R. § 2.31(a). Because we conclude that any prior disclosure of the medical record is not relevant to our resolution of this appeal, we need not address whether Doe's consent to the release of the medical record was valid.
An administrative hearing was held pursuant to G. L. c. 31, § 41, to determine whether there was just cause for the termination. At the hearing, over Doe's objection, the town introduced the medical record in support of its position that Doe was not truthful on her application. The hearing officer concluded that there was "more than ample just cause" to terminate Doe's employment.The town then terminated Doe's employment in December 2 020.
The hearing officer also considered that Doe had been suspended on four previous occasions for falling asleep on duty, failing to show up for work, and lying to Watertown emergency dispatch about her name and location to conceal that she was driving while intoxicated.
Doe appealed the town's decision to the commission pursuant to G. L. c. 31, § 43. At a pretrial conference, the town indicated that it intended to introduce the medical record. Doe again objected, and the commission, sua sponte, raised the applicability of 42 U.S.C. § 290dd-2. Thereafter, the commission ordered that the medical record would be excluded unless the town obtained a court order authorizing its use. The town then filed the underlying action seeking an order from the Superior Court. After a hearing, the judge authorized the use of the medical record, concluding that there was good cause for the disclosure.
Discussion.
Title 42 U.S.C. § 290dd-2(a) protects the confidentiality of patient records maintained "in connection with the performance of any program or activity relating to substance use disorder 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." Patient records so protected may not be disclosed unless the patient has consented, or a court has ordered disclosure after a showing of good cause. 42 U.S.C. § 290dd-2(b). "Regulations promulgated pursuant to [the] statute require that a court's determination of 'good cause' be based on two findings: '(1) Other ways of obtaining the information are not available or would not be effective; and (2) The public interest and need for the disclosure outweigh the potential injury to the patient, the physician-patient relationship and the treatment services.'" Adoption of Lisette, 93 Mass.App.Ct. 284, 288 (2018), quoting 42 C.F.R. § 2.64(d).
The parties disagree regarding the standard of review for a court order authorizing disclosure pursuant to 42 U.S.C. § 290dd-2. Relying on Lisette, 93 Mass.App.Ct. at 290 (applying abuse of discretion standard where judge issued 42 U.S.C. § 290dd-2 order during trial), and Adoption of Virgil, 93 Mass.App.Ct. 298, 303-306 (2018) (same), the town argues that we should review the judge's ruling for an abuse of discretion. Doe argues that where, as here, the judge did not conduct an evidentiary hearing and relied solely on documentary evidence, our review is de novo. Commonwealth v. Tremblay, 480 Mass. 645, 656 (2018). While we believe the town has the stronger argument, we need not resolve the question, because we conclude that under either standard the town established good cause.
Other available effective methods.
We briefly address Doe's argument that the judge erred in deciding that the town established that there was no other available and effective way to obtain the information regarding her prior drug use. Doe argues that the town could have issued a subpoena to Doe's mother to testify about Doe's illegal drug use and treatment.The judge concluded that the mother's testimony would be inadmissible hearsay. We agree with Doe that administrative agencies need not observe the rules of evidence, see G. L. c. 30A, § 11 (2), and that the mother's testimony, even if hearsay, could have been admitted at an administrative proceeding in the discretion of the hearing officer. But we also agree with the judge that "Doe's medical record is plainly the most probative evidence that she lied on her employment application to the Town, when she denied having ever used or possessed illegal drugs . . . [and that] [t]here is no comparable evidence of Doe's asserted dishonesty." We see no error in this implicit conclusion that the mother's proposed testimony against her daughter, even if available, would not be "effective" within the meaning of Lisette, 93 Mass.App.Ct. at 289-290.
We note that in the Superior Court, Doe also argued that the town could have subpoenaed her uncle to testify regarding whether she was under the influence of alcohol at the time she drove his car. Doe does not pursue this argument on appeal.
Public interest in disclosure.
We have said that "[a]n officer of the law carries the burden of being expected to comport himself or herself in an exemplary fashion." Mclsaac v. Civil Service Comm'n, 38 Mass.App.Ct. 473, 475 (1995) . Police officers must act "in accordance with the laws that they are sworn to enforce and behave in a manner that brings honor and respect for rather than public distrust of law enforcement personnel." Attorney Gen, v. McHatton, 428 Mass. 790, 793-794 (1999) (quotation omitted). Mindful of these principles, the judge concluded that disclosure of the medical record would serve the public interest of maintaining public trust and confidence in the integrity of law enforcement, and that such public trust would be eroded if police officers "are permitted to maintain their employment in the face of demonstrated dishonesty." The judge also considered that Doe's dishonesty would need to be disclosed to defendants in criminal prosecutions involving evidence obtained by Doe. See Kyles v. Whitley, 514 U.S. 419, 437 (1995). We agree with the judge's assessment that this would compromise the Commonwealth's ability to effectively enforce the law.
The judge balanced the public interest in disclosure against Doe's privacy interest. In particular, he considered Doe's privacy interest in statements Doe may have made to treatment providers and ordered that any such statements be redacted from the medical record before disclosure. The judge also ordered that the commission enter an impoundment order before the admission of the medical record in evidence, so that the confidentiality of the medical record could be protected "to the fullest extent possible." Bearing in mind all of these circumstances, we see no error in the judge's balancing of the public interest in disclosure against Doe's privacy interest.
Prior disclosures. Doe argues that the town's prior disclosures of her medical record constituted violations of § 290dd-2 and, therefore, the town should be precluded from further disclosing the record. We see no provision in the statute or in the accompanying regulations for the remedy Doe seeks. The remedies for a violation of 42 U.S.C. § 290dd-2 are set forth in 42 U.S.C. §§ 1320d-5 and 1320d-6, see 42 U.S.C. § 290dd-2(f), and include monetary fines and imprisonment for up to ten years. 42 U.S.C. § 1320d-6(b). These sanctions do not include a prohibition on further disclosure.
Nor has Doe provided us with cases supporting the proposition that a prior unlawful disclosure precludes a party from establishing good cause for future disclosure. Doe's reliance on Daybreak Youth Servs. v. Clark County Sheriff's Office, 19 Wash.App. 2d 879 (2021), is not persuasive. Daybreak involved a request for an order authorizing a disclosure that had already occurred, with the appellate court concluding that such retroactive approval could not be had. Id. at 891. Here, the town did not seek authorization for its prior disclosures. Rather, the town sought a court order prior to disclosing the record before the commission, the procedure required by 42 C.F.R. § 2.64. For these reasons, we need not address the propriety of any prior disclosures by the town, as they do not affect the disclosure here.
Judgment entered August 25, 2021, affirmed.
Vuono, Wolohojian & Kinder, JJ.
The panelists are listed in order of seniority.