No Section 1983 claim for violating substance abuse patient confidentiality

Plaintiffs' lawyers will from time to time get phone calls over health care privacy. Sometimes you get a call because someone's HIPAA rights were breached in the unauthorized release of medical records. But the courts have already ruled that HIPPA does not provide a private right of action. There is no lawsuit under HIPAA for this. In this case, the Second Circuit considers another health records case under a different statute, also finding there is no claim.

The case is Schlosser v. Kwak, issued on November 2. Plaintiff was incarcerated in a Connecticut state prison before he was released on probation and began using illegal substances to deal with the withdrawals occasioned by running out of medication to treat his mental illness. He was sent to a counseling center for substance abuse treatment. When plaintiff's probation officers submitted an affidavit that mentioned his substance abuse treatment, a process that led to proceedings against him in state court for violating the terms of his probation, plaintiff sued under 42 U.S.C. 290dd-2(a), which prohibits public disclosure of substance abuse treatment.

Is there a case for the violation of this statute? The general federal civil rights law, Section 1983, provides damages for the violation of a federal right. But not every federal statute can give rise to a Section 1983 case. The Supreme Court has devised a formula for determining which statutes can predicate a Section 1983 lawsuit. We ask whether Congress intended that the federal statute creates personal rights that are enforceable through Section 1983. That's the rule in Blessing v. Firestone, 520 U.S. 239 (1997).

This statute cannot support a Section 1983 claim, the Second Circuit (Lohier, Leval and Sullivan) says. The Fourth and Sixth Circuits have already held as such. The Second Circuit adopts the reasoning in those cases, stating that nothing in the statutory language suggests that Congress had in mind the creation of individual rights for purposes of suing under Section 1983. Rather, "Congress was concerned primarily with  fostering programs aimed at curtailing our nation's staggering substance abuse problems." And, while Congress provided criminal sanctions for violating this law, it made no mention of any private enforcement mechanism.