HHS proposes rule to reform substance abuse confidentiality regs

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The Department of Health and Human Services wants to ease decades-old regulations preventing physicians from knowing patients’ histories of addiction treatment.

Congress passed Title 42 of the Code of Federal Regulations Part 2 (42 CFR Part 2) more than 40 years ago because of concerns about the potentially negative consequences—including discrimination—that could come from disclosing the patient records of individuals with substance use disorders.

The proposed rule modifies several sections of 42 CFR Part 2 to “encourage care coordination among providers, including updating the definition of what constitutes a Part 2 record and its applicability,” while giving providers “clarity about what is, or should be, protected by Part 2 and to ensure non-Part 2 providers are not discouraged from caring for SUD patients or recording SUD information due to onerous legal requirements,” according to the HHS announcement.

Also See: Feds issue guidance on substance abuse confidentiality law

In a written statement, HHS Secretary Alex Azar said the “outdated regulations have often stood in the way of delivering that kind of care, and our proposed reforms to 42 CFR Part 2 aim to change that,” reflecting the “high priority that the Trump administration places on improving the quality and availability of behavioral healthcare, especially as we combat our nation’s crisis of opioid addiction and substance abuse.”

At the same time, HHS contends that the “basic framework for confidentiality protection of SUD patient records created by federally assisted treatment programs will not be altered under the proposed rule” and that 42 CFR Part 2 “will continue to prohibit law enforcement use of SUD patient records in criminal prosecution against the patient, and will also continue to restrict the disclosure of SUD treatment records without patient consent unless an exception applies.”

A fact sheet on the proposed rule can be found here.

The American Hospital Association commended HHS for taking steps to improve safety for patients seeking substance use disorder treatment.

“We appreciate the support for data reporting in prescription drug monitoring programs, with patient consent, and the clarification of the role primary care physicians can play in coordinating treatment,” said Tom Nickels, AHA’s executive vice president. “We urge Congress to further this progress by enacting legislation to align requirements for information sharing for the treatment of substance use disorder with HIPAA.”

Aligning 42 CFR Part 2 with HIPAA would require congressional action.

Last year, the Protecting Jessica Grubb’s Legacy Act was introduced by Sens. Joe Manchin (D-WV) and Shelley Moore Capito (R-WV), and the Overdose Prevention and Patient Safety Act was introduced by Reps. Markwayne Mullin (R-Okla.) and Earl Blumenauer (D-Ore.).

Both bills would align 42 CFR Part 2 with HIPAA for the purposes of healthcare treatment, and both are supported by a coalition of more than 40 national healthcare organizations including AHA, the American Psychiatric Association and the American Society of Addiction Medicine.

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