42 USC 290-dd2 establishes heightened confidentiality requirements for certain (really most) substance abuse treatment records. The statute grants authority to HHS to interpret the law and create regulatory provisions related to how these records are disclosed. This is codified in 42 CFR Part II. The statute itself establishes a penalty for violations:
42 USC 290-dd2(f) Penalties:
Any person who violates any provision of this section or any regulation issued pursuant to this section shall be fined in accordance with title 18.
It is reiterated in the regulations, furthermore being labeled as "criminal"
42 CFR 2.63: Criminal Penalty for Violations
Under 42 U.S.C. 290dd-2(f), any 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. [See also 2.62(b)(3) -- because penalty is criminal the regulations should be strictly construed in favor of defendant]
Here is my question. Much of the regulatory provisions place mandatory obligations on the judiciary. For instance, a judge is required to issue a protective order, even w/o request from the party in question. Is there any reason why the statute should be construed as to exclude the possibility that a judge could be fined for not following the regulatory procedures that are set in place?
Here is a good example: 42 CFR 2.64(c)
Any oral argument, review of evidence, or hearing on the application [for an order to disclose protected records] must be held in the judge's chambers or in some manner which ensures that patient identifying information is not disclosed to anyone other than a party to the proceeding, the patient, or the person holding the record, unless the patient requests an open hearing in a manner which meets the written consent requirements of the regulations in this part. The proceeding may include an examination by the judge of the patient records referred to in the application.
If a judge held a hearing to discuss issuing an order for disclosure and did so in an extremely public fashion and in a manner that didn't conform to the above regulation would they be criminally liable under the above statute?
