A study in regulatory method, local political cultures, and jurisprudential voice: the application of federal confidentiality law to Project Head Start.

• Author: Boldt, Richard C.

INTRODUCTION

The problems associated with the abuse of alcohol and other drugs have reached into virtually every community in the United States. Even discounting for the rhetorical excess that characterizes some governmental pronouncements about drugs and alcohol,(1) it seems clear that the compulsive use of addictive substances has had severe deleterious consequences for the lives of many individuals, their families, and their communities. Due to a confluence of factors, however, the corrosive effects of substance abuse have been experienced most acutely in the poorest communities, and have been borne disproportionately by the most vulnerable members of those communities, poor children.(2)

In the past few years, a number of "target cities" have received special funds from the Center For Substance Abuse Treatment (CSAT) of the Department of Health and Human Services, to improve the delivery of substance abuse treatment to needy populations.(3) One of the most important CSAT Target Cities initiatives has been a program designed to encourage the development of programmatic linkages between substance abuse treatment resources and the local Head Start agencies in a given city.(4) Baltimore, Maryland is among the cities that have received these special Head Start funds.(5)

In 1991, the Baltimore Urban Services Agency, the Baltimore Target Cities grantee, began working with Baltimore City Head Start to develop a coordinated strategy for delivering substance abuse treatment and prevention services to the families comprising the city's Head Start population.(6) Essential features of this project and others like it have included: the provision of early intervention and referral services for Head Start parents abusing alcohol or other drugs; the development of support programs for children from substance-abusing families; the creation of classroom-based strategies for staff members working with children who exhibit the physical and psychological effects of exposure to addicted adults; and the development of a family-centered case management system in which services directed to children and their substance-abusing parents are reinforced and coordinated in a "holistic" approach.(7)

Significantly, these projects have relied heavily upon Head Start personnel to perform diagnosis, referral, and counseling tasks in addition to providing the educational components of the plan. Indeed, not only did the Baltimore plan envision important roles for Head Start teachers, social workers, and parent liaisons,(8) it also called for the hiring and training of special case managers responsible for the coordination of substance abuse treatment services offered to Head Start families.(9)

This article focuses on one particular set of issues raised by the effort to coordinate the activities of Head Start centers with those of substance abuse treatment programs and the introduction of treatment and prevention functions into the daily interactions of Head Start staff and parents.(10) These issues involve the disclosure of potentially damaging information about a Head Start parent's drug or alcohol abuse and the confidentiality considerations that arise when she or he(11) has sought or received treatment for that abuse. Although it is possible to characterize these issues as technical, doctrinal questions of statutory and regulatory interpretation, it is also possible to understand them as questions of jurisprudential method that implicate the relationship between legal theory and practice. Stated simply, the problems arise because the system of statutes and administrative regulations governing the confidentiality of drug and alcohol treatment information assumes that treatment programs will be structured as conventional social service agencies, but most Head Start centers are organized around, and deeply committed to, a very different set of institutional values. Thus, though the governing law with respect to confidentiality within the drug and alcohol abuse treatment system depends upon clear delineations between professionals and nonprofessionals, counselors and clients, individuals and families, the daily practices and operative premises of many Head Start centers reject these dichotomous categorizations and the values these distinctions express.(12)

This disjunction between legal premise and concrete reality causes law-practice problems,(13) but it also provides an opportunity for an examination of regulatory methodology, the development of localized political culture, and issues of jurisprudential voice. The values expressed in the unusual organizational style of many Head Start programs reflect not only historical roots stretching back to the 1960s "war on poverty," but also the cumulative lived experience of the groups who have comprised Head Start both as staff and as recipients of services. Conventional legal assumptions and structures have failed to address the needs of these communities. The application of the confidentiality laws and regulations to the substance-abuse-related activities of Head Start exemplifies the shortcomings of the current legal system. Too often the interests of historically subordinated groups have been ill-served by traditional institutional structures and correspondingly traditional forms of legal analysis. Thus, it is appropriate to employ a different form of methodology, both to illuminate the situated and partial nature of legal prescriptions generally and to provide one example of how the use of an alternative jurisprudence may hold the potential for making the law more responsive to women, children, the poor, and people of color.

Part I of this article sets out the statutory and regulatory scheme that governs the confidentiality accorded to drug and alcohol abuse treatment information. Accompanying that discussion is an examination of the societal interests generally thought to be served by these laws, as well as an exploration of their applicability to Head Start centers engaged in the kind of coordinated efforts envisioned by the Target Cities program. Part II provides more information about Head Start itself and includes an abbreviated political and social history focusing on a tradition of parental involvement in staffing and governance. An appreciation of this counterethic of client participation and governance is essential to an understanding of what makes Head Start distinctive. Elaboration of this local culture and organizational style will clarify the clash between legal regulation governing confidentiality and the everyday practice of Head Start.

Part III, in turn, provides a series of alternative lenses through which to analyze the questions of confidentiality Head Start's efforts to provide substance abuse-related services raises. These alternative accounts reveal the partial perspective embedded within the relevant confidentiality statutes and regulations and suggest other perspectives that policymakers, administrators, and others might adopt. Each alternative lens draws upon a literature that has, in some fashion, offered a critique of traditional forms of law. The first lens draws on a body of work that includes a critique of the individualistic, rights-based approach of liberal legalism. The second lens utilizes feminist scholarship that puts forward both an alternative jurisprudential methodology and an alternative account of social relationships. The third and final lens comes from the work of a group of scholars of color who offer a vision of law centered upon experiences of exclusion and subordination.

1. THE DOCTRINAL LANDSCAPE: CONFIDENTIALITY OF DRUG AND ALCOHOL ABUSE TREATMENT INFORMATION

   1. The Federal Statutes and Regulations

      In the early 1970s, Congress passed two statutes designed to ensure the stnct confidentiality of information about persons seeking or receiving treatment for drug or alcohol abuse.(14) Pursuant to this Congressional mandate, in 1975 the Department of Health, Education, and Welfare promulgated regulations intended to clarify the obligations of treatment programs with respect to patient confidentiality and to operationalize the general statutory prohibition against disclosure.(15) In 1987, the Department of Health, Education, and Welfare's successor, the Department of Health and Human Services (HHS), issued a revised set of confidentiality regulations that currently apply to all federally assisted substance-abuse treatment programs.(16)

      The authors of the onginal federal regulations specified two policy objectives of the general prohibition against disclosure; both the enabling legislation and the regulations articulate these objectives. The first is a concept long associated with the testimonial privileges attaching to doctor-patient, lawyer-client, and priest-penitent relationships: the notion that protecting an individual's privacy will encourage openness and trust.(17) The drafters of the federal regulations also identified a more unusual objective animating the law in this area: the idea was that if all treatment providers adhered to a comprehensive and ngorous confidentiality scheme, it would help to create a perception "on the street" that it is safe to seek treatment for the highly stigmatized conditions of alcoholism and drug addiction.(18)

      In keeping with these strongly articulated policy objectives, the federal confidentiality laws and regulations operate around a general prohibition against disclosure.(19) Unless one of a limited number of exceptions applies, the general rule is that a federally assisted drug or alcohol treatment program may not disclose any information that would identify a person as a patient who has sought or received substance abuse treatment.

      The broad definitions of key terms convey just how expansive the prohibition on disclosure is. The regulations define a "program" as "a person which, in whole or in part, holds itself out as providing, and provides, alcohol or drug abuse diagnosis, treatment, or referral...