On February 9th of this year, the U.S. Substance Abuse and Mental Health Services Administration ("SAMHSA") published its proposed revisions to the Confidentiality of Alcohol and Drug Abuse Patient Records regulations, 42 CFR Part 2, the confidentiality rules governing the patient identifying information generated by substance use disorder treatment programs receiving federal assistance. The proposed changes seek to modernize the regulations by increasing the opportunities for individuals with substance use disorders to participate in developing health care models built on information sharing, coordinated care, and health information technology that did not exist at the regulations’ inception. If enacted after the comment period, the proposed changes will include revisions to the consent form requirements of Part 2, revisions to key definitions of terms used throughout the regulations, and the disclosure of information for research purposes and emergent circumstances. The public comment period on the proposed rule is open until April 11, 2016.
Historically, Part 2 rules have been far more restrictive than HIPAA, and have not been updated since 1987. Under HIPAA, providers and payors do not need to obtain prior patient consent to disclose information for coordinated treatment, payment and other healthcare operations. In this legal landscape, providers have long struggled with obtaining a Part 2 compliant authorization from patients to allow other providers to view data from their records in a fast, efficient way. Additionally, the Affordable Care Act mandates a more coordinated and systemic plan of care among providers.
At the center of the proposed revisions is the substantial change to Part 2 that would allow for a patient to complete a compliant authorization by generally designating, as opposed to specifically designating, the recipient(s) of his/her patient health information in the "To Whom" section of the consent form. Stated differently, a patient could generally designate the disclosure of this information to a class of network participants who have a treating relationship with the patient, as opposed to having to specify an individual provider each time the information is to be exchanged.
The new form also would need to include a detailed description of the amount and kind of substance use disorder treatment information that may be disclosed pursuant to the authorization. The proposed rule also mandates a patient choosing to include a general designation in the "To Whom" section of the consent form must, upon request, be provided a list of entities to which his/her information has been disclosed within the last two years pursuant to the authorization. Note, however, this provision would not take effect until two years after the effective date of the final rule.
In its preamble to the proposed rule, SAMHSA argues its revisions:
strive[] to facilitate information exchange within new health care models while addressing the legitimate privacy concerns of patients seeking treatment for a substance use disorder . . . [including] the potential for loss of employment, loss of housing, loss of child custody, discrimination by medical professionals and insurers, arrest, prosecution, and incarceration.
It seems that in both substance and effect, the SAMHSA’s proposed revisions aim to reconcile the historical need for stringent privacy protections of substance use disorder information and a patient with a substance use disorder’s ability to fully participate in the U.S.’s modern healthcare system.
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On February 9th of this year, the U.S. Substance Abuse and Mental Health Services Administration ("SAMHSA") published its proposed revisions to the Confidentiality of Alcohol and Drug Abuse Patient Records regulations, 42 CFR Part 2, the confidentiality rules governing the patient identifying information generated by substance use disorder treatment programs receiving federal assistance. The proposed changes seek to modernize the regulations by increasing the opportunities for individuals with substance use disorders to participate in developing health care models built on information sharing, coordinated care, and health information technology that did not exist at the regulations’ inception. If enacted after the comment period, the proposed changes will include revisions to the consent form requirements of Part 2, revisions to key definitions of terms used throughout the regulations, and the disclosure of information for research purposes and emergent circumstances. The public comment period on the proposed rule is open until April 11, 2016.
