By Alison Knopf
42 CFR Part 2 protects the privacy of patient substance use disorder (SUD) treatment records. It’s been under siege for 10 years, but so far, it is still the law.
H.R. 6082 would have replaced the confidentiality regulation, 42 CFR Part 2, with the Health Insurance Portability and Accountability Act (HIPAA). It would also have removed the requirement that patients consent to the release of their SUD treatment information. H.R. 6082 passed the House of Representatives last spring, but did not make it into the Senate version of the final opioid package signed by President Trump October 24.
And Congress received a letter from the American Medical Association (AMA) just days before the final vote in the Senate, clearly stating that H.R. 6082 would deter patients from seeking treatment. Congress may have decided to let the matter drop as a result of that letter.
There was a sigh of relief when 42 CFR Part 2 did not make it into the opioid package. But the regulation remains under siege.
Recommended Actions for CFR Part 2 From Key Groups
| Make No Major Changes | Make Changes, To Resemble HIPAA |
| AATOD
AMA Faces & Voices of Recovery Legal Action Center NAMA Recovery |
The American Society of Addiction Medicine
The Insurance Industry The National Association of Addiction Treatment Providers Partnership to Amend 42 CFR Part 2 |
At least two organizations still seeking a way to demolish 42 CFR Part 2 are The Association for Behavioral Health and Wellness (ABHW) (a membership association of behavioral care insurance companies), and the Partnership to Amend 42 CFR Part 2. Tiffany Huth, press person for both organizations, circulated a letter from Elinore McCance-Katz, MD, PhD, assistant secretary of the Department of Health and Human Services, to Rep. Earl Blumenauer (D-Oregon). The letter suggested that the Substance Abuse and Mental Health Services Administration (SAMHSA), which promulgates 42 CFR Part 2, and which Dr. McCance-Katz heads, support replacing the regulation with HIPAA.
SAMHSA’s Role
In fact, SAMHSA has worked to make 42 CFR Part 2 more appealing to some critics. Last January, responding to many complaints from the insurance industry, SAMHSA issued a final rule on the regulation that did weaken 42 CFR Part 2, However, the final rule did keep the provision requiring SUD treatment providers to obtain consent from patients before sharing their information, as the law requires.
But this wasn’t enough for critics who want to dispose of the patient consent aspect entirely. These critics, including ABHW, want to make 42 CFR Part 2 like HIPAA, which allows information-sharing—without any consent by the patient.
“We’re aware efforts to weaken 42 CFR Part 2 to a HIPAA standard continue,” said Deborah A. Reid, senior health policy attorney with the Legal Action Center. “SAMSHA has been public about it; it’s pretty transparent.” However, some continue to object, among them the Legal Action Center, the American Association for the Treatment of Opioid Dependence (AATOD), patients, and the recovery community. They note that if their treatment isn’t confidential, patients will not want to go. “Weaker privacy rights will serve as a disincentive” to seeking help, said Ms. Reid.
AMA
But the role of the AMA is significant. If the AMA wants to preserve 42 CFR Part 2, this is something for the patient community to hold on to. “The AMA is a powerful entity, and what they say is very important, particularly in the medical community,” said Ms. Reid.
“In my judgement, the AMA letter was extremely important in the support of preserving the protections,” Mark W. Parrino, MPA, AATOD president, told AT Forum. “Our position has not changed. I am still of the opinion that 42 CFR Part 2 is critically important to preserve the core protections.”
Protecting Patients: Confidentiality Is Essential
“This would be a disaster for current patients and the opioid epidemic,” said Joycelyn Woods, head of NAMA Recovery. “Confidentiality is very important to patients. Many will not seek treatment because they are afraid, or they will leave treatment early thinking that it is better than nothing. It feeds into the belief that ‘I get on methadone or buprenorphine and get some short term goal and leave.’ The result is usually relapse.”
Furthermore, medication-assisted treatment (MAT) patients, if their information is released, can be denied life insurance, Ms. Woods noted. “It’s not just about medical records. This impacts people’s families.”
If you want to know who you’re up against, listen to the insurance groups. The ABHW and the Partnership to Amend 42 CFR Part 2 “continue to work with patient groups, treatment facilities, providers, Congress, and others, to find a path forward for passage of H.R. 6082 by the end of the year,” Rebecca Klein, chair of the Partnership to Amend 42 CFR Part 2, and director of government affairs for ABHW, told AT Forum.
Ms. Klein added, “Modernizing Part 2 to ensure that HIPAA-covered entities have access to pertinent substance use disorder information will improve patient safety, treatment, and outcomes across the care delivery spectrum, enhancing the entire opioid package passed by the House and Senate and ultimately, helping to save lives.”
But patients know that being unable to have privacy will deter them from seeking treatment; it will not save lives.
NAMA Recovery, the Legal Action Center, Faces & Voices of Recovery, the AMA, and AATOD are the main supporters of keeping 42 CFR Part 2 as it is. The insurance industry, the American Society of Addiction Medicine, and the National Association of Addiction Treatment Providers are among the groups who want to make it like HIPAA.
AT Forum has covered the progression of the 42 CFR Part 2 controversy. For more information, see:
https://atforum.com/2018/09/42-cfr-part-2-faces-tough-going-congress/.
https://atforum.com/2017/02/final-rule-42-cfr-part-2-retains-core-confidentiality-protections/.
https://atforum.com/2016/06/longtime-confidentiality-rule-sud-consent-provisions-up-for-change/.