Addressing Challenges of Substance Abuse Data in the Age of EHRs

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As the House Energy and Commerce Committee prepares to vote tomorrow on the 21st Century Cures Act, Reps. Tim Murphy (R-Penn.) and Paul Tonko (D-N.Y.) hope to address the legal challenges of electronically exchanging behavioral health data.

“For too long, substance use and mental health services have been treated as separate from the larger healthcare system. This has served to increase the stigma surrounding mental health and substance use disorders, and it’s created a scenario where many suffering from these disorders face a fragmented and oftentimes uncoordinated care delivery system,” said Tonko during opening statements in yesterday’s committee markup of the proposed legislation. “One way we can promote integrated care is through the modernization of the requirements contained in 42 CFR Part 2.”

Current federal law, 42 CFR Part 2, limits the disclosure of identifiable information by a federally-assisted substance abuse treatment program to any entity, even for treatment, without signed consent from the patient to authorize the disclosure, with limited exceptions. It also restricts the re-disclosure of that data by the receiving entity for any purpose without consent. Murphy charges that 42 CFR Part 2 is “well intended, but outdated” given that it was enacted in 1972 before the advent of electronic health records.

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“These regulations provide critical and needed privacy protections for those receiving treatment for substance abuse. However, these regulations were also written in an era before electronic health records and some of the requirements of 42 CFR Part 2 are now creating barriers to coordinated care for individuals struggling with a substance use problem,” argued Tonko.

Consequently, Tonko and Murphy have crafted language that “modernizes the 42 CFR Part 2 requirements” for an EHR environment “without compromising needed privacy protections that ensure a patient has the opportunity to meaningfully consent to whom has access to their substance abuse records.”

Murphy told committee members that the proposed legislation would “allow the sharing of substance use records on a patient with a single consent form throughout a medical system or hospital” as opposed to the current legal requirement in which “a patient would have to provide written consent for every single clinician.” He concluded that the legislative language would bring the 42 CFR Part 2 statute into the digital age.   

The House Energy and Commerce Committee announced that the markup of the 21st Century Cures Act will reconvene on Thursday, May 21. It had previously been scheduled for May 20.


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