March 7, 2016 – The Legal Action Center (“LAC”) welcomes the efforts of the Substance Abuse and Mental Health Services Administration (“SAMHSA”) of the U.S. Department of Health and Human Services to modernize federal rules governing the confidentiality of substance use disorder patient records while maintaining needed privacy protections, including its release on February 9, 2016 of a proposed rule amending 42 C.F.R. Part 2 (“Part 2”).
After careful analysis of the proposed rule, LAC believes SAMHSA has struck an appropriate balance in its attempts to achieve two important objectives: preserving the confidentiality rights of substance use disorder (“SUD”) patients, while also facilitating the sharing of health information as needed to provide quality care in a new health care delivery environment, including through electronic exchange of health information.
While LAC plans to submit comments to SAMHSA requesting clarification of certain issues and making recommendations on certain technical issues, overall LAC supports SAMHSA’s approach. LAC is pleased that the proposed rule maintains Part 2’s core confidentiality protections, including consent requirements and the prohibition on re-disclosure of patient-identifying information without patient consent.
Although the proposed rule keeps core consent protections in place, it also creates a new avenue for the exchange of patients’ substance use disorder information, including electronically, by enabling patients to consent to disclosures of their substance use disorder records to their treating providers through a general designation. We support this approach as the best available mechanism for facilitating communication between patients’ substance use disorder caregivers and their other treating professionals while preserving patient control through the continued requirements of signed consent and prohibitions on redisclosure. However, we do worry that patients could be harmed by improper redisclosures made by health care professionals who receive information from SUD providers, so LAC urges SAMHSA to put in place the necessary systems and resources to ensure patient confidentiality is maintained through enforcement of the new rules and education and training of health care providers who must follow them when receiving protected SUD patient information.
During the rulemaking process, as we do a full analysis of the proposed rule, LAC looks forward to collaborating with the substance use disorder prevention, treatment, and recovery communities. We encourage all stakeholders, including people in treatment and in recovery and their families and caregivers, to take advantage of this important opportunity to work with SAMHSA by reviewing and commenting on the proposed rule. LAC will soon be releasing additional guidance on our website that stakeholders can draw from in drafting their comments to SAMHSA. Comments are due by 5:00 p.m. on April 11, 2016, and can be submitted at http://www.regulations.gov/.