J-A01021-19

                             2019 PA Super 129



IN THE MATTER OF THE APPLICATION OF              IN THE SUPERIOR COURT
THE       COMMONWEALTH           OF                 OF PENNSYLVANIA
PENNSYLVANIA     FOR   AN    ORDER
APPROVING THE RELEASE OF PATIENT
RECORDS FROM A DRUG AND ALCOHOL
TREATMENT FACILITY



                    v.

APPEAL OF: COMMONWEALTH OF
PENNSYLVANIA

                                                     No. 734 EDA 2018


              Appeal from the Order Entered February 20, 2018
                In the Court of Common Pleas of Pike County
                 Criminal Division at No: 5-2018 Sealed File


BEFORE: OTT, STABILE, and McLAUGHLIN, JJ.

OPINION BY STABILE, J.:                              FILED APRIL 24, 2019

     Appellant, the Commonwealth of Pennsylvania, appeals from the

February 20, 2018 order denying its application for a warrant for patient

records from a drug and alcohol treatment facility. We affirm in part, reverse

in part, and remand.

     The Commonwealth is seeking records from a rehabilitation clinic (“the

Clinic”) in Pike County documenting distribution of methadone from January

1, 2017 to February 12, 2017. Specifically, the Commonwealth is seeking
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records pertaining to a person1 (“Defendant”) facing a pending charge of drug

delivery resulting in death (18 Pa.C.S.A. § 2506). A supporting affidavit from

a Pennsylvania State Police Trooper (“the Trooper”) states that a victim

(“Victim”) was found dead in February of 2017. Affidavit, 1/24/18, at ¶ 2.

Victim had a history of abusing crack cocaine, heroin, and marijuana. Id. at

17. A post-mortem toxicology report revealed methadone in Victim’s system.

Id. at ¶ 11.      Defendant was on the scene when the Trooper arrived to

investigate.    Id.   Also on the scene was Victim’s brother (“Brother”) who

stated that Victim and Defendant had been discussing the use of methadone

earlier in the day. Id. at ¶ 5. Defendant’s cell phone and cell phone records

revealed that Defendant and Victim texted back and forth about the use of

methadone on the day of Victim’s death, and that the two agreed that

Defendant would bring some methadone to Victim’s apartment. Id. at ¶¶ 9,

16.    The cell phone records also confirmed Defendant’s presence at the

apartment on the day of Victim’s death.          Id. at ¶ 20.   According to the

Commonwealth’s application for disclosure of records, Defendant received

methadone from the Clinic as part of his treatment for opiate abuse.

Application, 1/24/18, at ¶ 3.         Thus, the Commonwealth asserts that the

Clinic’s records will confirm that Defendant had access to methadone. Id. at

¶ 6.


____________________________________________


1  The record in this matter is sealed, and we have redacted our opinion
accordingly.

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       The Commonwealth filed its application pursuant to 42 U.S.C.A.

§ 290dd-2 and 42 C.F.R. § 2.65 (Id. at opening paragraph), but has since

abandoned any reliance on federal law.2 At the hearing, and on appeal, the

Commonwealth has relied on a provision of the Controlled Substance, Drug,

Device and Cosmetic Act (“CSA”), 35 P.S. § 780-112(b), Act of 1972, April 14,

Pa. Laws 233, No. 64, § 12. Counsel for defendant argues that the trial court

correctly denied the Commonwealth’s application pursuant to a provision of

the Pennsylvania Drug and Alcohol Abuse Control Act (“DAA”), 71 P.S.

§ 1690.108, Act of 1972, April 14, Pa. Laws 221, No. 63, § 8.3 We will confine

our analysis accordingly.

       Our standard of review for questions of statutory interpretation is de

novo and our scope of review is plenary. Matter of Private Sale of Prop.

by Millcreek Twp. Sch. Dist., 185 A.3d 282, 290 (Pa. 2018). The CSA sets


____________________________________________


2   Section 290dd-2, relating to the Substance Abuse and Mental Health
Services Administration, and governing confidentiality of records, applies to
programs or activities “conducted, regulated, or directly or indirectly assisted
by any department or agency of the United States….” Section 2.65 of Title 42
of the Code of Federal Regulations governs “Procedures and criteria for orders
authorizing disclosure and use of records to criminally investigate or prosecute
patients.” 42 C.F.R. § 2.65. The parties did not develop a record on whether
the Clinic’s activities bring it within the purview of § 290dd-2 or any other
federal law.

3  Defendant argues that the Commonwealth waived its ability to rely on the
CSA because it did not rely on the CSA in its application. We decline to find
waiver, as the parties argued the CSA and DAA at a hearing before the trial
court, and the trial court addressed both statutes in its opinion. This is not an
instance where a party is raising an issue for the first time on appeal in
violation of Pa.R.A.P. 302(a).

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forth    schedules    of     controlled   substances,   governs   registration    by

manufacturers, distributers, and retailers of controlled substances; governs

prescription, administration, and dispensing of controlled substances, and so

forth. Section 780-112 of the CSA, titled “Records of distribution of controlled

substances,” provides in relevant part:

        (b) Every practitioner licensed by law to administer,
        dispense or distribute controlled substances shall keep a
        record of all such substances administered, dispensed or
        distributed by him, showing the amount administered, dispensed
        or distributed, the date, the name and address of the patient, and
        in the case of a veterinarian, the name and address of the owners
        of the animal to whom such substances are dispensed or
        distributed. Such record shall be kept for two years from the
        date of administering, dispensing or distributing such substance
        and shall be open for inspection by the proper authorities.

35 P.S. § 780-112(b) (emphasis added).

        The definition of “practitioner” includes:

        [A] pharmacy, hospital, clinic or other institution licensed,
        registered, or otherwise permitted to distribute, dispense, conduct
        research with respect to or to administer a controlled substance,
        other drug or device in the course of professional practice or
        research in the Commonwealth of Pennsylvania.

35 P.S. § 780-102.         Methadone is a controlled substance.    35 P.S. § 780-

104(2)(ii)(11). The Commonwealth asserts, and Defendant does not dispute,

that the Clinic is a practitioner within the meaning of § 780-102.               As a

practitioner, the Commonwealth argues, the Clinic must maintain records as

required by the CSA and make them open for inspection by proper authorities,

in this case the State Police and prosecuting authorities in Pike County.




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      The DAA, enacted on the same day as the CSA, incorporates the CSA’s

definitions. 71 P.S. § 1690.102. The DAA also establishes the Pennsylvania

Advisory Council on Drug and Alcohol Abuse to advise the Department of

Health on drug and alcohol programs.        Id. at § 1690.103.    The DAA has

several provisions governing admissions and commitments to treatment

facilities. Id. at § 1690.105, 1690.112a. It also governs drug and alcohol

abuse services in correctional institutions, juvenile detention centers, and for

persons on probation and parole. Id. at § 1690.106. Section 1690.108 of the

DAA (titled “Confidentiality of records”) provides:

      (a) A complete medical, social, occupational, and family history
      shall be obtained as part of the diagnosis, classification and
      treatment of a patient pursuant to this act. Copies of all pertinent
      records from other agencies, practitioners, institutions, and
      medical facilities shall be obtained in order to develop a complete
      and permanent confidential personal history for purposes of the
      patient’s treatment.

      (b) All patient records (including all records relating to any
      commitment proceeding) prepared or obtained pursuant to
      this act, and all information contained therein, shall remain
      confidential, and may be disclosed only with the patient’s consent
      and only (i) to medical personnel exclusively for purposes of
      diagnosis and treatment of the patient or (ii) to government or
      other officials exclusively for the purpose of obtaining benefits due
      the patient as a result of his drug or alcohol abuse or drug or
      alcohol dependence except that in emergency medical situations
      where the patient’s life is in immediate jeopardy, patient records
      may be released without the patient’s consent to proper medical
      authorities solely for the purpose of providing medical treatment
      to the patient. Disclosure may be made for purposes unrelated to
      such treatment or benefits only upon an order of a court of
      common pleas after application showing good cause therefor. In
      determining whether there is good cause for disclosure, the court
      shall weigh the need for the information sought to be disclosed
      against the possible harm of disclosure to the person to whom

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       such information pertains, the physician-patient relationship, and
       to the treatment services, and may condition disclosure of the
       information upon any appropriate safeguards. No such records
       or information may be used to initiate or substantiate
       criminal    charges     against    a    patient     under     any
       circumstances.

71 P.S. § 1690.108(a), (b)(emphasis added).4

       The bolded portions highlight the parties’ competing interpretations of

§ 1690.108.      The Commonwealth does not dispute that Defendant was a

patient of the Clinic, or that the Clinic was providing Defendant with

methadone as treatment for his opiate addiction. The Commonwealth argues,

however, that it narrowly tailored its warrant application to seek records

prepared pursuant to the CSA and not records prepared or obtained

pursuant to the DAA. Defendant argues, and the trial court found, that the

Commonwealth is seeking the records of a drug rehabilitation patient in order

to substantiate criminal charges against that patient, in direct violation of the

last sentence of § 1690.108(b).

       Lacking any governing precedent on this precise issue, we turn to the

rules of statutory construction.           “The object of all interpretation and

construction of statutes is to ascertain and effectuate the intention of the

General Assembly. Every statute shall be construed, if possible, to give effect

to all its provisions.” 1 Pa.C.S.A. § 1921(a). “When the words of a statute


____________________________________________


4  The parties do not address subsection (c), which applies to disclosure of
records obtained and prepared by private practitioners, hospitals, or
rehabilitation facilities. 71 P.S. § 1690.108(c).

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are clear and free from all ambiguity, the letter of it is not to be disregarded

under the pretext of pursuing its spirit.” 1 Pa.C.S.A. § 1921(b). “Generally

speaking, the best indication of legislative intent is the plain language of a

statute.” Gallo v. Conemaugh Health Sys., Inc., 114 A.3d 855, 863 (Pa.

Super. 2015).

      We perceive no pertinent ambiguity in the statutory language presently

at issue. The CSA provides that a practitioner licensed to administer, dispense

or distribute controlled substances must maintain records thereof, and that

the records must be open for inspection by proper authorities.       Defendant

does not dispute that the Clinic is a practitioner, nor does he dispute that the

Clinic distributed the controlled substance methadone to him. Pursuant to

§ 780-112(b) of the CSA, the record of that “distribution” must be open for

inspection by proper authorities.     Defendant does not dispute that the

Pennsylvania State Police and the Pike County District Attorney’s office are

proper authorities.

      The DAA on the other hand, protects the records of patients undergoing

treatment for drug or alcohol abuse. The DAA forbids disclosure of patient

records for purposes of initiating or substantiating criminal charges against a

patient. 71 P.S. § 1690.108(b). In In re Search Warrant Application No.

125-4, 852 A.2d 408 (Pa. Super. 2004), this Court explained that a “vital

component for ensuring the participation of those in need of treatment is the

protection of their confidentiality.” Id. at 413. “Therefore Section 1690.108


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provides that all patient records shall remain confidential and may be disclosed

only with the patient’s consent and only for specific purposes[.]” Id. To that

end, as we have already explained, subsection (b) protects all records

“prepared or obtained pursuant to this act.” 71 P.S. 1690.108(b).

      Our review of the clear and unambiguous statutory language convinces

us that the trial court erred in denying the Commonwealth’s application for a

warrant.   The CSA governs the creation and maintenance of records of

distribution of controlled substances. Subsection (b) provides, without any

explicit exception, that those records “shall be open for inspection by the

proper authorities.” 35 P.S. § 780-112(b). The Clinic was required, pursuant

to the CSA, to keep records of its distribution of methadone to Defendant.

The DAA, on the other hand, provides for the confidentiality of records

prepared and obtained pursuant to the DAA, including, for example “a

complete medical, social, occupational, and family history” of each patient and

“all pertinent records from other agencies, practitioners, institutions, and

medical facilities.” 71 P.S. 1690.108(a). The General Assembly’s intent is

clear, and we perceive no conflict between the CSA and DAA on this point.

Records of controlled substances are prepared and open for inspection by

proper authorities pursuant to the CSA. The DAA’s confidentiality provision




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does not apply to records of controlled substance distribution, because those

records are not prepared pursuant to the DAA.5

       This Court’s analysis in In Warrant No. 125-4, bolsters our conclusion.

There, the Office of the Attorney General (“OAG”) was investigating a drug

rehabilitation facility for Medicaid overbilling. Warrant No. 125-4, 852 A.2d

at 409-10. The OAG sought certain facility records in order to substantiate its

allegations.    Id.    The Court noted that the Pennsylvania Code explicitly

granted the OAG authority to review the rehabilitation center’s files and verify

its payment claims.       Id. at 413.      Further, the OAG was “not seeking the

substance of any medical, psychiatric or counseling sessions of the patients

involved.” Id. at 413-14. “Nowhere does the Commonwealth request notes


____________________________________________


5 The trial court found the statutes to be in conflict and resorted to § 1933 of
the rules of statutory construction, titled “Particular controls general”:

       Whenever a general provision in a statute shall be in conflict with
       a special provision in the same or another statute, the two shall
       be construed, if possible, so that effect may be given to both. If
       the conflict between the two provisions is irreconcilable, the
       special provisions shall prevail and shall be construed as an
       exception to the general provision, unless the general provision
       shall be enacted later and it shall be the manifest intention of the
       General Assembly that such general provision shall prevail.

1 Pa.C.S.A. § 1933. The trial court found that the CSA provides, in general,
that controlled substance distribution records are open to inspection by
authorities, and that § 1690.108(b) of the DAA creates a particular exception.
One could just as easily argue, however, that the DAA provides general
protection of patient records and the CSA creates a particular exception for
controlled substance distribution records. In any event, we find no conflict
between the relevant statutory provisions and therefore need not rely on
§ 1933.

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of counseling sessions with treatment providers, diagnoses, individual

treatment plans, or other substantive drug and alcohol treatment records.”

Id. at 414.     The OAG had obtained the names of many patients and

interviewed some of them. Id. The OAG was investigating fraud, and the

rehabilitation facilitation facility’s proposed interpretation of the DAA would

permit it to use the DAA’s confidentiality provisions as a shield against a fraud

investigation. Id. “Such a result is, of course, untenable and ignores the fact

that the privilege belongs to the patient.” Id.

      While Warrant No. 125-4 is distinguishable from the present case in

some respects, the Court’s analysis of § 1609.108 is illuminating. Here, as in

Warrant No. 125-4, the Commonwealth is not seeking the substance of any

counseling session, treatment plan, or other substantive information clearly

within the purview of the DAA’s confidentiality provision. In Warrant No.

125-4, the opponent of the warrant was seeking to shield itself from criminal

investigation by stretching the DAA’s confidentiality provisions farther than

the legislature intended them to go. Warrant No. 125-4, 852 A.2d at 414.

Similarly, in the instant case, Defendant seeks to use the DAA as a shield

against the Commonwealth’s investigation of Defendant’s alleged unlawful

distribution of a substance he received lawfully from the Clinic. But because

the records in question will do nothing but document lawful distribution of

methadone, we perceive no tension between the CSA’s record inspection

provision and the DAA’s prohibition of using patient records to substantiate


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criminal charges.   Enforcing § 780-112(b) as written will not reveal to the

Commonwealth any potentially incriminating information in the substance of

any of Defendant’s patient records.

      Our result, therefore, does not undermine the goal, expressed in

Warrant No. 125-4, of ensuring the participation in treatment of those in

need by protecting their confidentiality. Id. at 413. On the other hand, it

would be unreasonable to assume that the General Assembly intended

§ 1690.108(b) to      apply to   patients      under   investigation for   unlawful

distribution of controlled substances provided to them by a rehabilitation

facility. The rules of statutory construction require us to presume that the

General Assembly did not intend an unreasonable or absurd result.                1

Pa.C.S.A. § 922(1).

      For all of the foregoing reasons, we reverse the trial court’s order insofar

as it forbade the Commonwealth to inspect records of the Clinic’s distribution

of methadone to Defendant, as per 35 P.S. § 780-112(b). We observe that

the Commonwealth also sought informational and educational literature

provided to Defendant about methadone and the risks of ingesting it. The

Commonwealth has not developed any argument in support of its authority to

review those records pursuant to the CSA or any other law. We therefore

affirm the trial court’s order to the extent it denied a warrant for that

information.




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      Order reversed in part and affirmed in part.   Case remanded.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/19




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