By Alison Knopf
Despite years of attempting to do away with the regulation that protects the confidentiality of substance use disorder (SUD) treatment records—with almost all treatment organizations piling onto the bandwagon—the insurance industry has still not managed to do so.
The regulation, 42 CFR Part 2, has been chipped away at, allowing various exceptions, such as for the vaguely defined “healthcare operations.” And the federal government is now supporting getting rid of it as well, as are some—but not all—members of Congress.
Supporters of the Confidentiality Regulation Speak Up
The loudest supporter of the regulation is the American Medical Association, which last fall stopped the measure from getting through Congress, with an important letter making it clear that—as opioid treatment programs (OTPs) well know—patients would probably not want to go to treatment if they didn’t have control over who had access to their records (see AT Forum tk).
In fact, this was the very reason for the institution of the regulation more than three decades ago—the late Bob Newman saw that police would follow patients into OTPs in New York City. This was obviously untenable, during what was then a heroin epidemic, because it discouraged patients from seeking treatment.
We are in the midst of another opioid epidemic, and it is not the time to discourage patients from seeking treatment.
But yet, led by the electronic health record (EHR) industry, this is still the case. Congress is now taking up new initiatives to get the measure passed.
Opponents Fight Back
The “Partnership to Amend 42 CFR Part 2” is led by Pamela Greenberg, the same person who heads the Association for Behavioral Health and Wellness, a membership organization of behavioral health insurance companies. The partnership includes the American Society of Addiction Medicine and the National Association of Addiction Treatment Providers, and it supports the Overdose Prevention and Patient Safety Act, issued this spring in the House, and the Protecting Jessica Grubb’s Legacy Act introduced this spring in the Senate.
The identical bills would accomplish what similar bills—which failed last year due to the AMA’s intervention and the constant opposition by AATOD, the Legal Action Center, and Faces & Voices of Recovery—would have done—replace 42 CFR Part 2 with HIPAA, but include “protections against the use of addiction records in criminal, civil, or administrative proceedings,” according to the Partnership. What the bills would not allow, however, is the essence of 42 CFR Part 2, which is that SUD treatment providers cannot release patient information to anyone without specific written consent by the patient.
Part 2: Protection, or Endangerment?
Speaking for ASAM, R. Corey Waller, MD, said: “Today, patients suffering with addiction are often caught within a siloed system where—depending on where they receive care—doctors may lack critical patient information—creating life-threatening blind spots. As currently written, Part 2—which applies only to substance use disorder treatment in select healthcare settings—endangers the very lives it intends to protect. ASAM applauds the introduction of the Overdose Prevention and Patient Safety Act and the efforts of Congressional leaders to bring Part 2 into the 21st Century. Allowing patient information related to substance use disorder to be safely integrated into the rest of the health care system will save lives.”
Others said that addiction patients weren’t treated fairly because they were being separated out from other patients. “It’s past time for health parity for persons with substance use disorders,” said Kevin Scalia, executive vice president of Netsmart, an EHR company. “Separating a person’s substance use treatment records from the rest of their medical record denies them fully-informed diagnosis and treatment from their doctors, increasing the chance of unintended prescribing errors, dangerous drug interactions and over-utilization. This common-sense bill aligns 42 CFR Part 2 more closely with HIPAA to enable integrated care, while adding increased anti-discrimination and patient privacy protections.”
In the meantime, patients say they would not go to treatment if they didn’t have control over their information.
For more coverage of 42 CFR Part 2 and OTPs, see