An administrator at an East Grand Forks treatment center is charged with a crime after she refused to comply with a search warrant last week. But the warrant might not meet standards set out in federal law and the confrontation may be part of a larger problem between the arresting officer and the center itself.
Amber Hardtke, the treatment director at Douglas Place, a ”high-intensity residential treatment center” off Hwy. 2, was arrested Thursday, Jan. 23, by East Grand Forks police and faces a pair of misdemeanor charges for obstructing the legal process, according to Minnesota court records. Those misdemeanor charges, though, are expected to be dismissed and could be replaced by a felony, pending review by the Polk County Attorney’s office, according to the officer who arrested Hardtke.
And executives at Meridian Behavioral Health, which operates Douglas Place, have decried the arrest as “illegal.”
“What was she arrested for? She didn’t do anything wrong,” said Diane Rafferty, the company’s interim CEO. “There were no grounds to remove her from that facility and put her in jail.”
Rafferty sent an email to the Herald over the weekend outlining her concerns about the case.
Hardtke and Carly Carlson were approached at the center on Wednesday, Jan. 22, by Cpl. Jake Thompson and Ofc. Gilbert Trevino, who had an apprehension and detention order for a patient at the center. Hardtke and Carlson did not confirm or deny whether the patient was there, citing federal privacy laws.
The next afternoon, Det. Sgt. Tony Hart and Lt. Rod Hajicek returned with a search warrant for the patient’s intake and discharge paperwork. Hardtke declined to hand over those documents, citing the same federal laws.
While Hardtke and the officers waited, a legal back-and-forth ensued between higher-ups at the center and Cliff Wardlaw, an assistant Polk County attorney. Ultimately, Wardlaw instructed the officers to arrest Hardtke, who said she wasn’t told what she was being charged with. Wardlaw did not return a Herald request for comment on Monday.
Leaders at Meridian Behavioral Health, which operates Douglas Place and 22 other facilities, said they were considering a lawsuit.
The crux of last week’s confrontation is whether Hart and Hajicek’s warrant met requirements outlined in 42 CFW Part 2, a supplement of sorts to the more widely known Health Insurance Portability and Accountability Act -- commonly referred to as “HIPAA.”
Meridian executives argue that it did not meet those requirements. The “Part 2” law allows organizations like the treatment center to release information about a patient in response to a warrant or subpoena only if the patient consents to it, among other considerations.
The Herald obtained a copy of the warrant and showed it to Paul Traynor, a visiting assistant professor of law at UND. Traynor, who teaches health law, said he felt the documents sought in the warrant would still be protected under HIPAA.
Police and the judge who signed the warrant are obliged to address criminal activity and behavior, Traynor said.
“But the question we have to ask ourselves: does that outweigh the privacy expectation and the federal protection to privacy that HIPAA provides to medical treatment?” he told the Herald. “It looks to me like the authorities did everything right. I just don’t think that it’s sufficient to outweigh the privacy rights of the person receiving the treatment.”
Hardtke was released on Thursday night, and Hart sent her a friend request on Facebook the following day that he has since deleted. That request, Hardtke feels, was an act of intimidation.
“Why else would he have done it?” Rafferty said.
Hart, when reached by the Herald Monday afternoon, said the friend request was a mistake.
“Fat fingers on a small screen,” he said.
Hardtke’s contention fits into a broader problem between Hart and Douglas Place staff.
Rafferty claims he has a pattern of harassing behavior and also that staff at the center are scared of Hart.
“This police officer has an issue with any kind of treatment facility in his town,” she said.
When reached by the Herald on Monday, Hart declined to speak on the record about his issues with the center.
Police arrive with a search warrant at a Meridian facility about once every three months, according to executives there. And almost always, they said, warrants are not enough to supersede HIPAA.
Police have been upset by that, Rafferty said, but they generally come back with a corrected warrant or wait for the patient in question to be discharged.
Thursday was the first time a Meridian employee had been arrested after declining to turn over records despite a warrant.