**§1.494 Procedures and criteria for orders authorizing disclosure and
use of records to criminally investigate or prosecute patients.**

\(a\) *Application*. An order authorizing the disclosure or use of
patient records covered by §§1.460 through 1.499 of this part to
criminally investigate or prosecute a patient may be applied for by VA
or by any person conducting investigative or prosecutorial activities
with respect to the enforcement of criminal laws. The application may be
filed separately, as part of an application for a subpoena or other
compulsory process, or in a pending criminal action. An application must
use a fictitious name such as John Doe, to refer to any patient and may
not contain or otherwise disclose patient identifying information unless
the court has ordered the record of the proceeding sealed from public
scrutiny.

\(b\) *Notice and hearing*. Unless an order under §1.495 of this part is
sought with an order under this section, VA must be given:

\(1\) Adequate notice (in a manner which will not disclose patient
identifying information to third parties) of an application by a person
performing a law enforcement function;

\(2\) An opportunity to appear and be heard for the limited purpose of
providing evidence on the statutory and regulatory criteria for the
issuance of the court order; and

\(3\) An opportunity to be represented by counsel.

\(c\) *Review of evidence*: Conduct of hearings. Any oral argument,
review of evidence, or hearing on the application shall be held in the
judge's chambers or in some other manner which ensures that patient
identifying information is not disclosed to anyone other than a party to
the proceedings, the patient, or VA. The proceeding may include an
examination by the judge of the patient records referred to in the
application.

\(d\) *Criteria*. A court may authorize the disclosure and use of
patient records for the purpose of conducting a criminal investigation
or prosecution of a patient only if the court finds that all of the
following criteria are met:

\(1\) The crime involved is extremely serious, such as one which causes
or directly threatens loss of life or serious bodily injury including,
but not limited to, homicide, rape, kidnapping, armed robbery, assault
with a deadly weapon, and child abuse and neglect.

\(2\) There is a reasonable likelihood that the records will disclose
information of substantial value in the investigation or prosecution.

\(3\) Other ways of obtaining the information are not available or would
not be effective.

\(4\) The potential injury to the patient, to the physician-patient
relationship and to the ability of VA to provide services to other
patients is outweighed by the public interest and the need for the
disclosure.

\(5\) If the applicant is a person performing a law enforcement
function, VA has been represented by counsel independent of the
applicant.

\(e\) *Content of order*. Any order authorizing a disclosure or use of
patient records under this section must:

\(1\) Limit disclosure and use to those parts of the patient's record
which are essential to fulfill the objective of the order;

\(2\) Limit disclosure to those law enforcement and prosecutorial
officials who are responsible for, or are conducting, the investigation
or prosecution, and limit their use of the records to investigation and
prosecution of extremely serious crime or suspected crime specified in
the applications; and

\(3\) Include such other measures as are necessary to limit disclosure
and use to the fulfillment on only that public interest and need found
by the court. (Authority: 38 U.S.C. 7332(c))