Part 2 undercover-agent placement order

Editorial approval scope: The team checked current source fidelity, scope boundaries, dates, arithmetic, reader usefulness, practical workflow, and general-information limitations.

Current rule checkpoint

Live 42 CFR 2.67 governs an investigative agency's request to place an undercover agent or informant in a Part 2 program as an employee or patient to investigate suspected criminal misconduct by program employees or agents. The court route controls director notice, good cause, a 12-month on-site period, patient information, disruption, confidentiality, and patient-use restrictions.

The application concerns suspected program-personnel misconduct

42 CFR 2.67 permits an investigative agency to apply. The program director receives notice and a limited hearing opportunity unless the application asserts the director is involved or would reveal the proposed placement to suspected people.

The court makes four good-cause findings where applicable

The court must find reason to believe an employee or agent is engaged in crime. It also addresses unavailable or incomplete alternative evidence, the balance of public need against patient and treatment injury, and added conditions when placement occurred before the agency discovered an order was required.

The order controls placement and information

The order specifically authorizes placement and limits it to 12 months from on-site placement unless a new order extends it. It confines patient-identifying information to investigating or prosecuting implicated employees or agents and adds measures to reduce disruption and confidentiality breaches.

Verify purpose and preplacement diligence

Record the investigative agency, jurisdiction, suspected employee or agent misconduct, factual basis, proposed role, program, location, personnel subject, and requested start. Keep patient investigation outside the purpose. Before placement, preserve the applicable section 2.3(b) diligence, including timely federal and state locator searches, available website or location review, and privacy-notice review.

Counsel should determine whether the program is subject to Part 2 and whether the application fits section 2.67 before operational placement begins.

Resolve director notice

The program director ordinarily receives adequate notice and a limited opportunity to be heard on the issuance criteria. An exception applies when the application asserts the director is involved in the suspected criminal activity or would intentionally or unintentionally reveal the proposed placement to suspected employees or agents.

Document the applicable route and court determination. Limit disclosure, service, hearing access, docket language, and case records to protect the investigation and patient confidentiality.

Verify all findings and contents

Confirm the court finds reason to believe an employee or agent is engaged in criminal activity, addresses alternative evidence, and balances public need against potential injury to patients, clinical relationships, and treatment services. A post-placement application also requires the section 2.3(b) conditions and discovery finding; unlawfully obtained records cannot support the request.

The entered order must specifically authorize placement, start the maximum 12-month period when the person is placed on site, restrict patient information to the authorized personnel investigation or prosecution, and include measures to limit disruption and real or apparent confidentiality breaches.

Govern placement through termination

Record the actual on-site start, approved role, locations, access, handler, reporting route, patient contacts, systems, observations, artifacts, incidents, and end date. Limit access and collection to the order. Prevent clinical interference, coercion, unnecessary patient exposure, and access beyond the authorized placement.

End placement by the 12-month limit unless a new court order extends it. Preserve the new order before continued activity. Reconcile records, reports, credentials, devices, access, testimony, sealing, retention, and closure.

No placement information may support criminal investigation or prosecution of a patient or a section 2.65 application. Monitor every derivative and downstream handoff for that prohibition.

Example with placement orders

Four placement orders are abstracted. Three contain the applicable findings, notice treatment, 12-month clock, personnel purpose, patient-use bar, and disruption controls; one lacks a defined start date. Completeness is 3 of 4 orders.

Owner controls

The 2024 final rule supplies current safeguards. Use restricted counsel intake, director-notice analysis, sealed matter files, placement clocks, role boundaries, patient-data monitoring, scope review, and termination evidence.

Undercover-placement-order checklist

• verify agency jurisdiction, personnel-focused purpose, Part 2 status, and diligence;
• document director notice or the asserted and court-approved exception;
• support every applicable good-cause and post-placement finding;
• abstract the role, on-site start, 12-month limit, and protective measures;
• control access, patient contact, disruption, confidentiality, and reporting; and
• terminate or obtain a new order, then reconcile information and patient-use limits.

Placement authority is narrow in purpose, place, time, and information use. Operational convenience cannot extend the court's boundaries.