E.D.Mich.: Govt’s violation of 42 C.F.R. Part 2 has no exclusionary remedy; that’s for const’l violations

In an opiod over prescribing case, a government violation of 42 C.F.R. Part 2 by the government only leads to a fine against the offending person. The exclusionary rule does not apply to regulation violations. United States v. Pompy, 2021 U.S. Dist. LEXIS 48995 (E.D. Mich. Mar. 16, 2021):

First, the exclusionary rule deters constitutional violations, not violations of federal, state, or local regulations. See United States v. Leon, 468 U.S. 897, 906, 104 S. Ct. 3405, 3411, 82 L. Ed. 2d 677 (1984); see also United States v. Calandra, 414 U.S. 338, 348, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974) (“the [exclusionary] rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect”). Furthermore, suppression of evidence in a criminal prosecution is not the contemplated remedy for violating the regulation — a fine is. “[A]ny person who violates any provision of this section or any regulation issued pursuant to this section shall be fined in accordance with Title 18 of the U.S. Code.” 42 C.F.R. § 2.3; see also State v. Magnuson, 210 Mont. 401, 407-08, 682 P.2d 1365 (1984) ([f]inding that under the regulation “[i]f Congress had intended that suppression and dismissal were the appropriate remedies for a violation of a confidentiality it would have so provided.”).

Second, the purpose of the regulation — to protect people who are seeking treatment for their drug addiction — is fulfilled here. Generally, under the regulation, disclosure of patient records and placement of an undercover agent for purposes of investigating and/or prosecuting a part 2 program requires a court order. 42 C.F.R. § 2.66 (a), 2.67 (a). No information obtained in such a way may be used to investigate or prosecute a patient in connection with a criminal matter. 42 C.F.R. § 2.66 (d). The reason for this is clear: to protect patients, not physicians, from criminal prosecution while they are seeking treatment for addiction. The regulation explicitly “intend[s] to ensure that a patient receiving treatment for a substance use disorder in a part 2 program is not made more vulnerable by reason of the availability of their patient record than an individual with a substance use disorder who does not seek treatment.” 42 C.F.R. § 2.2 (b)(2). This purpose has been fulfilled here.

This entry was posted in Exclusionary rule. Bookmark the permalink.

Comments are closed.