The Substance Abuse and Mental Health Services Administration (SAMHSA) has issued a call for comments on whether the federal regulations governing Confidentiality of Alcohol and Drug Patient Records (42 C.F.R. Part 2) should be updated, including holding a Listening Session on June 11, 2014 and receiving comments until June 25, 2014.
The Legal Action Center (LAC), a non-profit law and policy organization whose sole mission is to fight discrimination against people with histories of addiction, HIV/AIDS or criminal records and to advocate for sound public policies in these areas, has nearly four decades of experience working to protect the privacy of individuals with substance use treatment records. We encourge as many individuals and organizations as possible to submit comments to SAMHSA urging that, as the regulations are updated to facilitate more effective integration of care and needed communication in the electronic age, 42 C.F.R. Part 2’s core privacy protections be maintained.
What to Tell SAMHSA
The Key Message: While we support updating the mechanics of the federal alcohol and drug confidentiality regulations to facilitate more effective integration of care and needed communication in the electronic age, 42 C.F.R. Part 2’s core privacy protections MUST be maintained.
[Insert specific examples of harm that patients have experienced that could become widespread if the regulations were weakened and/or examples of when the confidentiality regulations have protected against harm to patients]
If you want to submit more detailed comments, here are the Legal Action Center’s Key Principles and Recommendations:
Key Principles: LAC’s recommendations to SAMHSA on the future of 42 C.F.R. Part 2 are based on the following principles:
- Addiction treatment should be integrated with mental and physical health care, and communication among health care providers should be encouraged.
- At the same time, 42 C.F.R. Part 2’s heightened privacy protections are as critical today as they were when they were enacted more than 40 years ago, and a move toward HIPAA’s looser privacy standards would not sufficiently protect people seeking and receiving substance use disorder treatment. If patient records can be easily accessed in order to criminally investigate or prosecute a patient, or deny them insurance or a job, or be used against them in a divorce or child custody proceeding, many patients will be afraid to enter treatment in the first place.
- LAC continues to believe that patients in alcohol and drug programs should retain the power to decide when and to whom their records are disclosed, even for treatment and payment purposes, given the continued prevalence of discrimination in our society. This includes disclosures to the general health care system, HIEs, health homes, ACOs, and CCOs. The best way for patients to retain that power is by requiring patient consent for most disclosures, together with a strong prohibition on redisclosure.
- It is both necessary and technologically possible to integrate addiction and other health care and effectively exchange addiction treatment data while maintaining the core protections of 42 C.F.R. Part 2.
- LAC supports maximizing inclusion of substance use disorder (SUD) records in electronic health record (EHR) systems and health information exchanges (HIEs) while maintaining privacy protections that are as essential today as they were when enacted in the 1970s. People with substance use disorders still face loss of employment, housing, and child custody; insurance and health care discrimination; criminal arrest, prosecution and incarceration; and a host of other negative consequences. 42 C.F.R Part 2’s privacy protections greatly minimize the possibilities that a patient’s own treatment records could be used against them in all those situations. In order to encourage people with SUDs to seek treatment, 42 C.F.R. Part 2’s more stringent privacy protections must be maintained rather than accede to HIPAA standards which would allow many more disclosures that could lead to those harmful consequences for patients.
- LAC supports the goals set out in the request for comments and many of the specific suggestions for tweaking how the regulations currently operate. LAC believes that the current regulations, together with existing plus additional guidance from SAMHSA, can accomplish many (if not all) of the intended goals of integrating substance use disorder and other health care and improving communication between them more effectively.
- Since HIPAA requires compliance with state and federal laws that mandate greater privacy protections, electronic health record systems (EHRs) must be designed so as to comply with the many state statutes that require heightened protections for information related to mental health, HIV/AIDS, reproductive health, domestic violence and other types of sensitive health information, as well as with 42 C.F.R. Part 2. It is important to keep in mind, therefore, that EHRs would be required to accommodate enhanced protections for the medical records of some illnesses in order to be HIPAA-compliant even if 42 C.F.R. Part 2 did not exist.
- We urge the continued development of technical solutions for consent management.