House mulls updating law on substance use disorder records

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The House Energy and Commerce Health Subcommittee on Tuesday held a hearing on the Overdose Prevention and Patient Safety Act, which seeks to align Title 42 of the Code of Federal Regulations Part 2—known as 42 CFR Part 2—with HIPAA when it comes to the confidentiality of substance use disorder records.

“Simply put, an antiquated law prevents lifesaving medical care for patients in recovery for substance use disorders,” testified Rep. Earl Blumenauer (D-Ore.), who co-authored the draft legislation with Rep. Markwayne Mullin (R-Okla.). “Originally designed to protect the privacy of individuals in addiction treatment, this decades-old barrier now creates an impediment to delivery of integrated medical care.”

More than 40 years ago, Congress passed 42 CFR Part 2 because of concerns about the potentially negative consequences—including discrimination—that could come from disclosing the patient records of individuals with substance use disorders. However, a 2017 report from the President’s Commission on Combating Drug Addiction and the Opioid Crisis criticized the law for being a hindrance to comprehensive healthcare and called it a misguided for preventing doctors from knowing their patients’ addiction treatment histories.

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“Failure to modernize Part 2 has weakened our nation’s ability to respond to the ongoing opioid crisis and is contributing to the record number of drug overdose deaths in 2017,” Blumenauer told the committee. “Doctors can’t treat a whole patient with half a medical record, and patients have a right to the best medical care available.”

He pointed out that 42 CFR Part 2 is actually “more restrictive than HIPAA, supersedes HIPAA, and can only be breached in an emergency or with the express written consent of the patient,” adding that the Overdose Prevention and Patient Safety Act will “align Part 2 regulations with the existing patient confidentiality protections under HIPAA” for the purposes of sharing information for treatment, payment and healthcare operations.

Justin McKee, policy director for the National Alliance on Mental Illness of Ohio, testified in support of the Overdose Prevention and Patient Safety Act.

“42 CFR Part 2 remains a significant barrier to the sharing of clinical data and the proper coordination of care,” said McKee, whose older brother died of an opiate overdose in 2014. “In part because of the antiquated provisions contained within 42 CFR Part 2, the medical professionals that prescribed him opiate-based pain medications were not able to identify him as a high-risk individual with a history of substance use disorders, substance use treatment and countless relapses.”

Also testifying in support of the Overdose Prevention and Patient Safety Act at the hearing were Gerald DeLoss, a health law attorney and partner with the firm of Greensfelder, Hemker & Gale, P.C. in Chicago, and Jeremiah Gardner, manager of public affairs and advocacy for the Hazelden Betty Ford Foundation.

However, Patty McCarthy Metcalf, executive director of advocacy organization Faces and Voices of Recovery, said the group was “adamantly opposed” to dismantling the “critically important” 42 CFR Part 2 confidentiality protections.

“We do not want our highly sensitive, personal information shared for purposes of treatment, payment, healthcare operations or for any other purpose beyond current the rule without our express written consent or Part 2’s other safeguards,” testified McCarthy Metcalf. “The advocacy efforts to eliminate 42 CFR Part 2 have largely been driven by coalitions of hospital associations, insurers, treatment agencies, software vendors and pharmaceutical companies, without representation of patient advocacy groups or people in recovery from alcohol and other drug addiction.”

She added that making changes to minimize 42 CFR Part 2’s protections and align it with HIPAA would have long-lasting, negative effects on a wide range of individuals and family members.

“There are protections that people would lose if HIPAA becomes the standard for substance use information,” concluded McCarthy Metcalf. “Law enforcement authorities could seize patient records with subpoenas and general court orders and use them to prosecute people in addiction treatment programs. HIPAA does not provide significant protections against information in substance use disorder records being routinely seized to investigate and prosecute patients in substance use treatment.”

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