M.A.K. v. Rush-Presbyterian St. Luke’s Medical Center

Docket No. 90527-Agenda 28-May 2001.

M.A.K., Appellee, v. RUSH-PRESBYTERIAN-ST.-LUKE’S
MEDICAL CENTER, d/b/a Rush Behavioral Health
Center-Du Page, Appellant.

Opinion filed December 20, 2001.

JUSTICE GARMAN delivered the opinion of the court:

Plaintiff, M.A.K., filed a complaint in the circuit court of Will
County against defendants, Rush-Presbyterian-St. Luke’s Medical
Center (Rush) and Royal Maccabees Life Insurance Company
(Royal), alleging that Rush had improperly released certain
medical records to Royal, pursuant to a written consent signed by
plaintiff. The circuit court granted judgment on the pleadings to
Rush. Thereafter, plaintiff voluntarily dismissed his action as to
Royal and appealed the circuit court’s order. The appellate court
reversed and remanded (316 Ill. App. 3d 156). We granted Rush’s
petition for leave to appeal (177 Ill. 2d R. 315) and we now
reverse the judgment of the appellate court.

BACKGROUND

In count I of his second amended complaint, plaintiff alleged
that Rush had breached the physician-patient relationship by
releasing his records without first advising plaintiff of its intention
to do so and obtaining his approval. In count II, for invasion of
privacy, plaintiff alleged that Rush had wrongfully released his
medical records without his prior authorization or consultation.
Count III alleged negligent infliction of emotional distress.

The allegations of the complaint show that on January 13,
1995, plaintiff was admitted to Rush’s Behavioral Health
Center-Du Page (Behavioral Health Center) for alcohol
dependence. He was discharged on March 2, 1995. In October
1994, plaintiff had applied to Royal for a disability income
insurance policy. Royal issued the policy. While receiving
treatment at Rush, plaintiff contacted his insurance agent about
filing a claim for benefits under the policy. After receiving a claim
form from Royal, plaintiff notified Royal in February 1995 that he
would not be filing a claim. In April 1995, Rush received from
Royal a written consent signed by plaintiff, dated October 12,
1994, to release plaintiff’s medical and nonmedical information to
Royal. The records that Rush released to Royal included plaintiff’s
records of alcohol-dependence treatment. After receiving
plaintiff’s medical records from Rush, Royal cancelled plaintiff’s
disability policy.

The written consent signed by plaintiff was entitled
“AUTHORIZATION AND ACKNOWLEDGEMENT” (hereafter
authorization) and stated in pertinent part as follows:

“I AUTHORIZE 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 of me *** and any other non-medical
information of me *** to give to Royal *** any and all
such information.

I UNDERSTAND the purpose of this authorization is
to allow Royal *** to determine eligibility for life or
health insurance or a claim for benefits under a life or
health policy. ***

I UNDERSTAND THAT my *** medical records may
be protected by certain Federal Regulations, especially as
they apply to any drug or alcohol abuse data. I understand
that I *** may revoke this authorization at any time as it
pertains to any such drug or alcohol abuse data by written
notification ***.

* * *

*** I AGREE this Authorization shall be valid for two
and one half years from [October 12, 1994].”

In the circuit court, Rush filed a motion for judgment on the
pleadings (735 ILCS 5/2-615(e) (West 1998)), arguing that
plaintiff’s executed authorization expressly permitted Rush to
release his medical and nonmedical records to Royal and was
therefore facially valid. Plaintiff argued that the authorization was
not a valid waiver of his right to confidentiality of his medical
records that were not in existence at the time he signed the
authorization and that Rush should have notified plaintiff that
Royal had submitted a request for his medical records. Plaintiff
also filed a reply to Rush’s reply brief in support of its motion for
judgment on the pleadings in which plaintiff included an affidavit
of his attorney, who stated that, during a meeting with Paul
Feldman, the medical director of the Behavioral Health Center,
Feldman admitted that plaintiff’s records should not have been
released to Royal. On December 11, 1997, the circuit court granted
Rush’s motion.

The issue addressed by the appellate court was whether the
authorization complied with the requirement of section 2.31(a)(1)
of the Confidentiality of Alcohol and Drug Abuse Patient Records
regulations (hereafter regulation). Confidentiality of Alcohol and
Drug Abuse Patient Records, 42 C.F.R. ?2.31(a)(1) (2000). The
regulation requires that a written consent for release of alcohol and
drug treatment records give the “specific name or general
designation” of the person or program authorized to make the
disclosure of such records. In reversing the circuit court, the
appellate court relied upon the “plain language” of the
authorization and concluded that the term “general designation”
required something more specific than the phrase “any physician,
medical practitioner, hospital, clinic, health care facility or other
medical or medically related facility.” The court described the
language of the authorization as “at best imprecise and far too
generic to be considered a general designation as that term is
commonly understood and as is required by the regulations.” 316
Ill. App. 3d at 160.

ANALYSIS

I. Standard of Review

Judgment on the pleadings is proper only where no genuine
issue of material fact exists and the moving party is entitled to
judgment as a matter of law. Chicago Title & Trust Co. v. Steinitz,
288 Ill. App. 3d 926, 934 (1997). In ruling on a motion for
judgment on the pleadings, only those facts apparent from the face
of the pleadings, matters subject to judicial notice, and judicial
admissions in the record may be considered. All well-pleaded facts
and all reasonable inferences from those facts are taken as true.
Mt. Zion State Bank & Trust v. Consolidated Communications,
Inc., 169 Ill. 2d 110, 115 (1995). Our review is de novo. Board of
Trustees of the University of Illinois v. City of Chicago, 317 Ill.
App. 3d 569, 571 (2000).

II. Compliance With the Regulation

The regulation implements section 523 of the Public Health
Service Act (Public Health Act) (42 U.S.C. ?290dd-2 (1994)).
That section mandates the confidentiality of alcohol and drug
abuse patient records and prescribes the conditions and manner of
release of such records. It states in pertinent part as follows:

“(a) Requirement

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 shall,
except as provided in subsection (e) of this section, be
confidential and be disclosed only for the purposes and
under the circumstances expressly authorized under
subsection (b) of this section.

(b) Permitted disclosure

(1) Consent

The content of any record referred to in subsection (a)
of this section 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(a),
(b) (1994).

Subsection (g) grants authority to the Department of Health
and Human Services (Department) to promulgate regulations to
implement the purposes of the law. 42 U.S.C. ?290dd-2(g) (1994).
The regulation sets forth the requirements of a written consent
authorizing disclosure of a patient’s alcohol or drug abuse
treatment records. That section provides in pertinent part:

“(a) Required elements. A written consent to a
disclosure under these regulations must include:

(1) The specific name or general designation of the
program or person permitted to make the disclosure.

(2) The name or title of the individual or the name of
the organization to which disclosure is to be made.

(3) The name of the patient.

(4) The purpose of the disclosure.

(5) How much and what kind of information is to be
disclosed.

(6) The signature of the patient ***.

(7) The date on which the consent is signed.

(8) A statement that the consent is subject to revocation
at any time except to the extent that the program or person
which is to make the disclosure has already acted in
reliance on it. ***

(9) The 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) (2000).

Familiar principles of statutory construction apply to the
interpretation of regulations of an administrative agency. See
Tivoli Enterprises, Inc. v. Zehnder, 297 Ill. App. 3d 125, 132
(1998). The primary rule of statutory construction is to give effect
to the intent of the legislature. Paris v. Feder, 179 Ill. 2d 173, 177
(1997). The best evidence of legislative intent is the language used
in the statute itself and that language must be given its plain and
ordinary meaning. Paris, 179 Ill. 2d at 177. The statute should be
construed as a whole and, if possible, in a manner such that no
term is rendered meaningless or superfluous. Texaco-Cities
Service Pipeline Co. v. McGaw, 182 Ill. 2d 262, 270 (1998).
Where the meaning of a statute is unclear from a reading of its
language, courts may look beyond the language of the statute and
consider the purpose of the law, the evils it was intended to
remedy, and the legislative history behind it. In re B.C., 176 Ill. 2d
536, 542-43 (1997).

The phrase “general designation” is not defined in the
regulation. 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,” and “concerned or
dealing with universal rather than particular aspects”. Merriam
Webster’s Collegiate Dictionary 484 (10th ed. 1996).
“[D]esignation” is defined as “the act of indicating or identifying,”
and “a distinguishing name, sign, or title.” Merriam Webster’s
Collegiate Dictionary 313 (10th ed. 1996).

Rush argues that the phrase “general designation” is properly
construed to mean “a broad and comprehensive classification of
the programs and persons permitted to make disclosure” of the
patient’s confidential records. Since the terms “physician, medical
practitioner, hospital, clinic, health care facility, and other medical
or medically related facility” constitute such a classification, their
use in the authorization complied with the regulation. Plaintiff, on
the other hand, argues that the phrase requires the authorization to
contain a reference to records of treatment in an alcohol abuse
program.

As the appellate court recognized, this is an issue of first
impression. We have been unable to locate any case that has
addressed the question before us.

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.”

The original authority for the regulation derives from section
333 of the Comprehensive Alcohol Abuse and Alcoholism
Prevention, Treatment, and Rehabilitation Act of 1970 (Alcohol
Abuse Act) (42 U.S.C. ?4582 (1994)). That section is now section
523 of the Public Health Act (42 U.S.C. ?290dd-3 (1994)).
Congress recognized that, without guarantees of confidentiality,
many individuals would hesitate to seek treatment in alcohol and
drug abuse programs. Whyte v. Connecticut Mutual Life Insurance
Co., 818 F.2d 1005, 1010 (1st Cir. 1987). The purpose of enacting
the Alcohol Abuse Act was to facilitate the work of alcohol and
drug treatment centers by assuring the confidentiality of patient
records. United States v. Eide, 875 F.2d 1429, 1436 (9th Cir.
1989). The regulation was originally promulgated in 1975. 40 Fed.
Reg. 27802 (1975). Until 1987, the regulation provided that a
written consent to a disclosure of a patient’s alcohol or drug
treatment records must include the name of the program which
was to make the disclosure. 42 C.F.R. ?2.31(a)(1) (2000). The
regulation was amended in 1987 to its current form. In its
comments explaining the 1987 amendments the Department noted
that:

“The Final Rule retains all elements previously required
for written consent, though in one instance it will permit
a more general description of the required information.
The first of the required elements of written consent in
both the existing and proposed rule ([section] 2.31(a) (1))
asks for the name of the program which is to make the
disclosure. The Final Rule will amend that element by
calling for ‘(1) The specific name or general designation
of the program or person permitted to make the
disclosure.’ 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. (In this connection, the Department interprets the
existing written consent requirements to permit consent to
disclosure of information from many programs in one
consent form by listing specifically each of those
programs on the form.)

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.” Confidentiality of Alcohol
and Drug Abuse Patient Records, 52 Fed. Reg. 21,796,
21,799 (June 9, 1987).

After careful consideration, we conclude that the authorization
signed by plaintiff in this case complies with section 2.31(a)(1) of
the regulation. Prior to the 1987 amendments, the regulation
required a written consent to give the specific name of the program
or person permitted to make the disclosure. 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.

We note that plaintiff does not argue that he failed to
understand that alcohol treatment records could be disclosed
pursuant to the authorization. Indeed, language in the authorization
specifically refers to alcohol and drug abuse treatment records,
advising plaintiff that such records may be protected by federal
regulations and that he may revoke the authorization at any time
as it pertains to such records. We therefore conclude that the
appellate court erred in finding the authorization invalid under
section 2.31(a)(1) of the regulation.

III. Issues Raised by Plaintiff

In his appellee brief, plaintiff raises additional arguments in
support of the appellate court’s decision. He argues that the
authorization failed to comply with two additional elements of the
regulation. The regulation requires a written consent for release of
alcohol or drug treatment records to state how much and what kind
of information is to be disclosed. 42 C.F.R. ?2.31(a)(5) (2000). It
also requires a written consent to state “[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 states that “any and all” of plaintiff’s medical and
nonmedical information may be released. It also states that the
consent to disclosure will expire 2? years from October 12, 1994.

Plaintiff also argues that, even should we decide that the
authorization is valid, this cause should be remanded to the circuit
court to resolve issues of fact concerning whether Rush violated
its own policies and procedures in releasing plaintiff’s records. In
this argument, plaintiff relies on the alleged statement by Paul
Feldman, the Behavioral Health Center’s medical director, that
Rush should not have released plaintiff’s records.

Finally, plaintiff argues that, as a matter of law, the
authorization was not applicable to medical records not in
existence at the time he signed it.

Rush contends that plaintiff did not raise these arguments in
the circuit or appellate courts. It is not clear from the record that
all of these arguments are waived. After concluding that the
authorization failed to comply with the “general designation”
requirement of the regulation, the appellate court chose not to
address other arguments of the parties. The opinion does not
indicate what those arguments were. In addition, we note that
plaintiff argued in the circuit court that the authorization did not
waive his right to confidentiality of his medical records generated
after he signed the authorization. Regardless, the waiver rule is a
limitation on the parties and not the jurisdiction of this court.
Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d
493, 518 (2000). Under the circumstances, we choose to address
plaintiff’s arguments.

A. Other Requirements of the Regulation

Plaintiff argues that the authorization fails to specify how
much and what kind of information is to be disclosed, as required
by the regulation. The authorization states that it applies to “any
and all such information,” i.e., all medical and nonmedical
information possessed by the entities to make the disclosure.
Plaintiff apparently complains that the authorization’s description
of this information is too broad. He cites, as his sole authority for
this argument, a publication entitled, “Checklist for Monitoring
Alcohol and Other Drug Confidentiality Compliance.” Department
of Health and Human Services Publication No. 18 (SMA)
96-3083 (1996). This publication was published pursuant to a
contract from the Center for Substance Abuse Treatment (Center)
of the Substance Abuse and Mental Health Services
Administration, an agency of the Department, as part of its
Technical Assistance Publication Series. The publication that
plaintiff refers to is Technical Assistance Publication 18 and it
purports to provide a checklist to assist alcohol and other drug
programs and state and other governmental monitoring agencies
in determining whether a breach of patient confidentiality has
occurred under federal law and regulations governing patient
confidentiality.

With regard to section 2.31(a)(5) of the regulation, this
publication states that the information to be released “should be
described as exactly and narrowly as possible in light of the
purpose of the release. Releases for ‘any and all pertinent
information’ are not valid.” Department of Health and Human
Services Publication No. 18 (SMA) 96-3083, Checklist, pt.
A(III)(A), Summary of the Rule.

Plaintiff’s reliance on this publication is misplaced, because
it explicitly states that “[t]he opinions expressed herein are the
views of the authors and do not necessarily reflect the official
position of [the Center] or any other part of the [Department].”
Department of Health and Human Services Publication No. 18
(SMA) 96-3083, Introduction. Thus, it provides no authority for
plaintiff’s contention that the authorization’s description of the
kind and amount of information to be released violates the
regulation. There is no indication in the regulation or in the
Department’s comments to the 1987 amendments that a broad
description of the information to be released is impermissible.

Plaintiff also argues that the authorization does not comply
with section 2.31(a)(9) of the regulation, governing the terms
under which a written consent to disclosure is to expire. Plaintiff
asserts that the authorization’s statement that it is valid for 2?
years from October 12, 1994, goes “substantially” beyond the time
reasonably necessary to serve the purpose for which the
authorization was given. In support of this argument, plaintiff cites
a footnote in another Technical Assistance Publication, entitled,
“Confidentiality of Patient Records for Alcohol and Other Drug
Treatment,” which notes that some states have statutes that
provide for the automatic expiration of written consents after 60
or 90 days. Department of Health and Human Services Publication
No. 13 (SMA) 95-3018 (1994), ch.1 n.11. As with the prior
publication cited by plaintiff, this latter publication expressly
represents only the views of its author. It provides no support for
plaintiff’s argument. 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 2? years for the purpose of
evaluating any claims plaintiff might make under the insurance
policy is invalid.

B. Alleged Violation of Rush’s Policies in Disclosing Records

Plaintiff argues that this cause should be remanded for a
determination of whether Rush violated its own policies and
procedures in disclosing plaintiff’s records. Plaintiff relies on an
affidavit of his attorney referring to comments made by Feldman
during a meeting, stating that Rush should not have released the
records. Plaintiff notes that Rush did not challenge the affidavit,
which was attached to a reply to Rush’s reply to plaintiff’s
response to Rush’s motion for judgment on the pleadings.

Plaintiff’s reliance on this affidavit is misplaced. In ruling
upon a motion for judgment on the pleadings, a court may
consider only (1) facts apparent from the face of the pleadings, (2)
matters subject to judicial notice, and (3) judicial admissions in the
record. Mt. Zion State Bank & Trust, 169 Ill. 2d at 115. Extrinsic
evidence may not be considered. Romano v. Village of Glenview,
277 Ill. App. 3d 406, 413 (1995). Accordingly, the affidavit of
plaintiff’s attorney is irrelevant.

C. Validity of Authorization as to Subsequently Generated
Records

Plaintiff argues that, as a matter of Illinois law, the
authorization was not valid to waive his right to confidentiality of
his medical records that were not in existence on the date he
signed it. In support, he cites section 8-2001 of the Code (735
ILCS 5/8-2001 (West 1998)), which requires hospitals to permit
patients, after their discharge from the hospital, to examine and
copy their records. Plaintiff argues that the fact that the right under
this statute to examine and copy records accrues after discharge
from a hospital implies that a consent for release of hospital
records applies only to records in existence at the time the patient
signs the consent. Plaintiff cites no authority supporting his
interpretation of this statute. Section 8-2001 of the Code merely
allows patients access to their hospital records upon discharge.
Nothing in the statute implies that patients may not authorize
disclosure of treatment records that may be generated in the future.

Plaintiff next argues that, since he did not know at the time he
signed the authorization that he would be hospitalized in the future
for alcohol abuse treatment, he could not, by signing the
authorization, have waived his right to nondisclosure of his
records. Thus, without notice from Rush to plaintiff of Royal’s
request for his records, he could not have exercised his right to
revoke the authorization. In support of his argument, plaintiff cites
an Arizona case, Danielson v. Superior Court, 157 Ariz. 41, 754
P.2d 1145 (App. 1987). That case, however, is inapposite, as it
involved a situation in which a physician disclosed his alcohol
treatment records to a state investigatory agency and later sought
to prevent disclosure of those records in a medical malpractice
lawsuit. The appellate court held that the physician had no right to
withhold the records from the agency and that, in such cases, a
voluntary disclosure cannot be considered a waiver of the right to
invoke the confidentiality privilege in the future. Danielson, 157
Ariz. at 48, 754 P.2d at 1152. In the instant case, plaintiff had the
right not to sign the authorization and he maintained the right to
revoke it at any time. Plaintiff points to no authority for the
proposition that he could not waive his confidentiality privilege as
to subsequently generated medical records and we reject his
argument.

CONCLUSION

We hold that the circuit court did not err in entering judgment
on the pleadings in favor of Rush. We therefore reverse the
appellate court’s judgment and affirm that of the circuit court.

Appellate court judgment reversed;

circuit court judgment affirmed.

JUSTICE FREEMAN, specially concurring:

The majority holds that an authorization for release of medical
records executed by plaintiff, M.A.K., in favor of plaintiff’s
insurance carrier, Royal Maccabbes 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 plaintiff’s 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 2? 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 plaintiff’s
records to Royal Insurance, including records of plaintiff’s
treatment for alcohol dependence. The records contained a
notation that the onset of plaintiff’s alcohol dependence took place
eight months prior to his admission to the Behavioral Health
Center. Royal Insurance cancelled plaintiff’s 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.F.R.
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.’ ” Slip op. at 6, 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.’ ” Slip
op. at 6, 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.’ ” Slip op.
at 6.

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.’ ” Slip op. at 7-8, 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.” Slip op.
at 8.

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.F.R. ?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.” Slip op. at 8. 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 and
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 plaintiff’s 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.” Slip op. at 8.

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 2? years
from October 12, 1994. Plaintiff argues that a period of 2? years
is substantially longer than the time period contemplated in the
regulation. The majority rejects plaintiff’s 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 2? years for the purpose of evaluating any
claims plaintiff might make under the insurance policy is
invalid.” Slip op. at 11.

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 2? years to determine plaintiff’s 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
plaintiff’s 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 2? 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 plaintiff’s 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 plaintiff’s medical
records if the plaintiff’s 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 plaintiff’s 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.

JUSTICE KILBRIDE, dissenting:

I agree with Justice Freeman’s analysis of the regulation
requiring a “general designation of the program or person” and
reject the majority’s interpretation of this provision. See 42 C.F.R.
?2.31(a)(1) (2000). In addition, I note that the comments to the
amendments emphasize the flexibility for patients in defining the
scope of their consent. Under the amendments, patients may now
use a single form to consent to the disclosure of records from a
single named program or from only certain kinds of programs. 52
Fed. Reg. 21,796, 21,799 (June 9, 1987). “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 *** would
consent to disclosure from all programs in which the patient has
been enrolled as an alcohol or drug abuse patient ***.”
(Emphasis added.) Slip op. at 7, quoting 52 Fed. Reg. 21,796,
21,799 (June 9, 1987). This example clarifies the proper
interpretation of the “general designation” requirement by
recognizing that patients may now identify either a “category of
facilities” or “a single specified program” in their consent.
(Emphasis added.) 52 Fed. Reg. 21,796, 21,799 (June 9, 1987).
Thus, a consent could validly authorize the disclosure of records
from all programs falling within the category of “alcohol or drug
abuse programs” by explicitly identifying that type of program.

In the instant case, however, the consent did not designate any
specific program category. Instead, it broadly claimed to authorize
disclosure of all types of medical records. The excessive breadth
of this consent contradicts the language in the comments and
undermines the strong confidentiality protections secured by the
Public Health Services Act (federal Act) (42 U.S.C. ?201 et seq.
(1994)). See also Chapa v. Adams, 168 F.3d 1036, 1038 (7th Cir.
1999) (noting that the purpose of the federal regulations is to fight
the country’s drug problem, primarily by encouraging voluntary
treatment, and recognizing that addicts are more likely to seek
treatment if it is provided confidentially). Thus, I join the portion
of Justice Freeman’s special concurrence rejecting the majority’s
interpretation of the “general designation” language in the
regulations. I do not adopt the special concurrence in its entirety,
however, because I believe it is inappropriate at this time to decide
whether a private cause of action may be maintained here since
that issue was not briefed or argued by the parties.

Moreover, I disagree with the majority’s treatment of a second
issue. The majority summarily disregards the plaintiff’s argument
that the scope of his authorization did not include medical records
created after he signed the consent form. Rather than address this
issue on its merits, the majority perfunctorily concludes that the
plaintiff failed to provide sufficient supporting authority for his
argument. Slip op. at 12-13. Yet, an examination of the majority’s
own extensive recitation of the comments to the amendments
supports the plaintiff’s argument. See slip op. at 7-8.

The comments explain that the changes allow patients the
choice of authorizing, on a single form, disclosure of records
“from all programs in which the patient has been enrolled as an
alcohol or drug abuse patient.” (Emphasis added.) Slip op. at 7,
quoting 52 Fed. Reg. 21,796, 21,799 (June 9, 1987). The past
tense of this language clearly and explicitly directs it at patient
records created prior to the signing of the consent, not those
generated months later.

This interpretation is further supported by the comments’
statement that the amendments seek to maintain “the potential for
a patient’s making an informed consent to disclose patient
identifying information” since ” ‘the patient is in [a] position to be
informed of any programs in which he or she was previously
enrolled.’ ” (Emphasis added.) Slip op. at 8, quoting 52 Fed. Reg.
21,796, 21,799 (June 9, 1987). Again, the language clearly limits
disclosure to existing records of past programs. Moreover, it is
well established that the alleged waiver of a right will not be
upheld unless the waiver was knowing and voluntary. Vaughn v.
Speaker, 126 Ill. 2d 150, 161 (1988). Waiver is consensual and
consists of the intentional relinquishment of a known right.
Western Casualty & Surety Co. v. Brochu, 105 Ill. 2d 486, 499
(1985). It would defy logic to conclude that a patient may validly
waive the right of confidentiality in records that do not even exist
at the time, thereby giving informed consent to their disclosure.
See Vaughn, 126 Ill. 2d at 161; see also Schiff v. Prados, 92 Cal.
App. 4th 692, 706, 112 Cal. Rptr. 2d 171, 182 (2001)
(“meaningful choice is at the heart of the informed consent
doctrine”).

Thus, I believe that the comments to the amendments support
the plaintiff’s contention that a valid consent must be limited to
the disclosure of existing records and it excludes records
subsequently generated. Since the scope of the consent signed by
the plaintiff is impermissibly broad and violates the protective
purpose of the regulations and the federal Act, I dissent from the
majority opinion.