Stimulus package includes 42 CFR Part 2 provisions

The language in the stimulus package, as of March 26, revises 42 CFR Part 2 (confidentiality of substance use disorder patient records requiring patient consent before release), eliminating the consent provisions – allowing patients to give consent only once: “it shall be permissible for a patient's prior written consent to be given once for all such future uses or disclosures for purposes of treatment, payment, and health care operations, until such time as the patient revokes such consent in writing.”While not full alignment with the Health Insurance Portability and Accountability Act (HIPAA), it is bad news for confidentiality. Many programs probably require consent before admitting patients to treatment. The vague “health care operations” is included as a party that can get information redisclosed. If the House and the President signs off, the new law goes into effect immediately. H. Westley Clark, M.D., J.D., Dean's Executive Professor at Santa Clara University and former director of the Center for Substance Abuse Treatment at the Substance Abuse and Mental Health Services Administration said the pending NPRM on 42 CFR Part 2 from SAMHSA should be suspended, that 42 CFR Part 2 should be formally moved from SAMHSA to the Office of Civil Rights (OCR) of the Department of Health and Human Services since OCR has the function to collect data, monitor breaches, and impose penalties.” In addition, stakeholders should “ask what the new 42 CFR part 2 look like with the proposed changes which include the consent provisions, the breach notification provisions, the penalty provisions and all the other bells and whistles.” The bill was passed unanimously by the Senate March 25, and was scheduled to go to the House of Representatives for a vote March 27, after which President Trump was expected to sign it.     

SAMHSA proposes significant changes to 42 CFR Part 2

In two separate proposals, the Substance Abuse and Mental Health Services Administration (SAMHSA) last month proposed radical changes to the confidentiality of substance use disorder (SUD) treatment records under 42 CFR Part 2. Both were in a Notice of Proposed Rulemaking (NPRM) and were published in the Federal Register Aug. 26.     

Onslaught against 42 CFR Part 2 continues in Congress

With the opposition of the American Medical Association (AMA) last fall, any moves in Congress and the federal government to weaken the patient consent provisions of 42 CFR Part 2, the regulation protecting the confidentiality of substance use disorder (SUD) treatment records, were stopped in their tracks — and in the nick of time (see ADAW, Oct. 1, 2018; Oct. 15, 2018). But the groups promoting the complete abandonment of 42 CFR Part 2, replacing it with the Health Insurance Portability and Accountability Act, which itself is targeted for at least partial destruction (see ADAW, Jan. 21, Jan. 28, Feb. 25), are back. There's a new push to try to overhaul 42 CFR Part 2.     

42 CFR Part 2 now up for SAMHSA rulemaking change

After complaining about 42 CFR Part 2, the regulation requiring patients to consent to release of their substance use disorder (SUD) treatment records, for years, but saying that Congress had to fix it, the Substance Abuse and Mental Health Services Administration (SAMHSA) is on the brink of changing the regulation.     

42 CFR Part 2 fight continues in wake of fragile victory

Less than a day after the committee reconciling the House and Senate versions of opioid legislation opted to omit H.R. 6082, which would have replaced the confidentiality regulation 42 CFR Part 2 with the Health Insurance Portability and Accountability Act (HIPAA) (see p. tk), proponents of that measure were working on alternative plans.     

AMA delegates vote to align 42 CFR Part 2 with HIPAA

Last week, the House of Delegates at the American Medical Association (AMA) voted to make the confidentiality regulation, 42 CFR Part 2, which gives substance use disorder (SUD) patients authority over who sees their records, like the Health Insurance Portability and Accountability Act (HIPAA). This is now policy of the AMA, in what is considered a part of the “democratic process” of voting. It's also a reversal of the AMA's decision last fall, when the organization sent a letter to Congress opposing just such an action, saying it would deter patients from seeking treatment.