LAC Provides Overview of Changes to Confidentiality Law – 42 CFR Part 2, Final Rule

February 15, 2017 – The Legal Action Center (“LAC”) has released a brief overview of the Substance Abuse and Mental Health Services Administration (“SAMHSA”)’s Final Rule on the Confidentiality of Substance Use Disorder Patient Records (“42 CFR Part 2” or “Part 2”). The Final Rule (which makes changes to 42 CFR Part 2), and a Supplemental Notice of Proposed Rulemaking (“SNPRM”) (which proposes additional changes to 42 CFR Part 2) were published on January 18, 2017. The SNPRM requests stakeholder comments on the additional proposed changes.

Both the Final Rule and the SNPRM are on hold until at least March 20, 2017, pursuant to a memorandum from President Trump. LAC’s overview of the Final Rule describes the major changes in the regulations, which will go into effect on March 20th if there is no further action by the Trump administration.

LAC’s overview of the Final Rule first summarizes provisions of Part 2 that remain the same in the amended regulations (e.g., who must satisfy Part 2’s requirements, what information is protected by Part 2, how information protected by Part 2 can be disclosed, and the prohibition on re-disclosure). LAC’s review then identifies the major provisions of Part 2 that will change when the Final Rule goes into effect (e.g., consent options, Qualified Service Organizations, revised and new definitions, security for records, and the list of disclosures requirement).  The purpose of these changes is to protect sensitive substance use disorder information while responding to a changing health care environment, which has seen increasingly integrated health care delivery settings and practices and widespread exchange of electronic health data.

Stakeholders should be aware that LAC’s overview is not a complete analysis of the Final Rule, so we encourage them to review the new regulations in their entirety and consult our future updates, sample forms, and publications on our website.

LAC also strongly encourages stakeholders to comment on the SNPRM by the February 17, 2017 deadline. To assist with this effort, LAC has also published a template for stakeholders to use and modify for submitting comments on the SNPRM. The full text of LAC’s comments on the SNPRM are available on our website.

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