The Substance Abuse and Mental Health Services Administration on Thursday postponed the effective date of its final rule on the confidentiality of substance use disorder patient records from February 17 to March 21.
For now, the effective date of the SAMHSA rule has been delayed because of a January 20 Office of Management and Budget memorandum that called on heads of executive departments and agencies to postpone for review for 60 days most regulations that have been published in the Federal Register but have not yet taken effect.
SAMHSA published the final rule on January 18 modifying 42 CFR Part 2, a portion of federal law that 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. The federal law also restricts the re-disclosure of that data by the receiving entity for any purpose without consent.
However, SAMHSA’s final rule would alleviate some of the barriers to this kind of information sharing. According to the agency, the rule “updates and modernizes the Confidentiality of Alcohol and Drug Abuse Patient Records regulations (42 CFR Part 2) to facilitate integration of care and new healthcare delivery models while protecting the privacy of patients diagnosed, treated, or referred for treatment for a substance use disorder.”
SAMHSA wants to ensure that patients with substance use disorders have the ability to participate in, and benefit from health system delivery improvements, including from new integrated healthcare models that are “foundational to HHS’s delivery system reform goals of better care, smarter spending, and healthier people.”
The agency notes that the last substantive update to 42 CFR Part 2 was 30 years ago and that, in the intervening years, significant changes have occurred within the U.S. healthcare industry that were not envisioned by the current regulations—such as the development of an electronic infrastructure for managing and exchanging patient information.
However, Deborah Peel, MD, founder of the organization Patient Privacy Rights and a practicing psychiatrist/psychoanalyst, believes this SAMHSA rule will destroy the privacy needed for treatment of substance abuse and psychiatric diseases.
“These changes are a massive mistake and will drive people away from treatment. The real problem is access to effective treatment, not sharing data, and not research,” says Peel. “The public lies and omits health information when seeking treatment because electronic health systems disclose and sell their data without their consent. The public knows their electronic records are controlled by the health technology industry and aren’t private. So they act to protect themselves by hiding information or delaying or avoiding treatment.”
She points to a survey released last month by Black Book which showed that 89 percent of consumers reported withholding health information during doctor visits, while 69 percent indicated that their current primary care physician does not demonstrate enough technology prowess for them to trust divulging all their personal information.
In the survey of more than 12,000 Americans, 57 percent of respondents said they are skeptical of the overall benefits of health IT such as EHRs, mobile apps and patient portals, given recent high-profile data breaches and a perceived lack of privacy protections by providers.
Particularly alarming about the survey results, Peel says, is the fact that consumers have concerns that mental health notes (99 percent) and pharmacy prescription (90 percent) data is being shared beyond their chosen provider and payer to retailers, employers or the government without their knowledge.
“The people who are the most reluctant to share are those with mental illnesses and substance abuse,” she contends.
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