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CONFIDENTIALITY (42 CFR PART-2)

Confidentiality is a fundamental aspect of the physician-patient relationship, and it is especially important for patients with addiction. Unfortunately, because of the legal and social ramifications associated with addiction, patients are often reluctant to tell their doctor that they may have an addiction or consent to the disclosure of information about their addiction treatment for fear of prosecution. This is an unfortunate aspect of the stigma that surrounds this disease, and it exacerbates the addiction treatment gap that exists in this country.

To address this issue, the federal government has implemented 42 CFR Part 2, regulations that protect the confidentiality of addiction treatment records of any person who has sought treatment for or been diagnosed with addiction at a federally assisted program.  42 CFR Part 2 aims to encourage people to seek treatment without fear of legal or social consequences. Improper sharing of a patient's addiction treatment information can lead to: negative perceptions and discrimination; criminal legal consequences, such as probation or jail time; and civil legal consequences, such as loss of child custody, employment or housing.

ASAM appreciates the heightened need for confidentiality protections of a patient's addiction treatment records as well as the need for complete and accurate medical information to be shared among a patient's treating clinicians. ASAM strives to strike this critical balance in its advocacy activities and will continue to call for needed privacy protections as 42 CFR Part 2 regulations and the underlying statute are updated.

Resources

  • The Legal Action Center (LAC) has created several sample consent forms for the release of confidential substance use disorder patient records. The new forms comply with changes made to the federal regulations governing 42 CFR Part 2 by a Final Rule issued in January 2017. The Final Rule took effect on March 21, 2017.
  • Privacy and Confidentiality Free Webinar: This CME webinar was developed in response to Final Rule changes made by the Substance Abuse and Mental Health Services Administration (SAMHSA) to the 42 CFR Part 2 confidentiality rule. To access the recording and informational materials from the webinar, visit the ASAM eLearning Center or click here.

  • ASAM has a sample Appendix D Consent to Release of Information under 42 CFR Part 2 form for physicians for educational and informational purposes only.

Appendix D Consent to Release of Information Under Title 42

  • SAMHSA has two fact sheets regarding 42 CFR Part 2 regulations:
  1. Does Part 2 Apply to me?
    • This fact sheet explains a 42 CFR Part 2 Program and how healthcare providers can determine how Part 2 applies to them.
  2. How do I exchange Part 2 data?
    • This fact sheet describes how 42 CFR Part 2 applies to the electronic health records with a Part 2 Program.
  • It is permissible for state laws, for the disclosure of confidential information on substance use disorder care, to be more restrictive than these federal regulations. However, state laws may not override them. If a state law is not stricter and conflicts with federal regulations, then the state law must yield to the federal regulations. The below resources from the George Washington University’s Hirsh Health Law and Policy Program and the Robert Wood Johnson Foundation's website, Health Information and the Law, can help treatment clinicians know if their state laws are more restrictive than the federal regulations.

Partnership to Amend 42 CFR Part 2

A coalition of over 20 health care stakeholders committed to aligning 42 CFR Part 2 with HIPAA to allow appropriate access to patient information that is essential for providing whole-person care.

Related News

Setting the Record Straight: ASAM’s Position on 42 CFR Part 2

by | Aug 11, 2017

In the wake of the introduction of the Overdose Prevention and Patient Safety (OPPS) Act, a bill that would amend the federal statute underlying the addiction treatment privacy regulations known as 42 CFR Part 2 (“Part 2”), ASAM has received many questions about our support for the bill and our position on changing Part 2.

 

To be clear, ASAM holds patients’ privacy rights in the highest regard. ASAM’s decision to support changes to Part 2 was debated at length with the implications for patients’ well-being at the heart of the discussion. Consideration was given to the dramatic changes that have occurred both in our healthcare system and in our understanding of the disease of addiction since Part 2 was promulgated in 1975, when addiction treatment was predominantly provided separately from the treatment of other illnesses in settings isolated from the broader healthcare system.

 

The advent of integrated health systems and electronic medical records has improved the safety, quality, and coordination of care for patients with any other health condition. Part 2 requirements prevent patients with addiction from sharing in these benefits, even though electronic exchanges of other health information are governed by strict privacy and security standards set by the Health Insurance Portability and Accountability Act (HIPAA) and the Health Information Technology for Economic and Clinical Health (HITECH) Act.

 

Even more importantly, we have learned much about the disease of addiction in the past 40 years. Research has shown that we cannot effectively treat addiction in isolation from other medical conditions. Many psychiatric disorders, infectious diseases, and other chronic conditions frequently co-occur with addiction; untreated addiction exacerbates these other conditions, and untreated infectious or other chronic diseases complicate addiction treatment.

 

Ultimately, it was decided that the barriers that Part 2 currently presents to coordinated, safe, and high-quality medical care cause significant harm, and that thoughtful changes to the law are necessary to mitigate this harm while protecting patients’ privacy. Accordingly, ASAM joined other provider associations, patient groups, and health plans to support the OPPS Act, which would align Part 2 with HIPAA for the purposes of health care treatment, payment, and operations. Such a change would allow for the sharing of patients’ addiction treatment records within the healthcare system under HIPAA’s well-established and modern privacy and security protections, while leaving in place Part 2’s prohibition on disclosure of records outside the healthcare system. Moreover, the bill includes a provision to strengthen protections against the use of addiction treatment records in criminal proceedings, a further improvement to Part 2 that we welcome.

 

ASAM will continue to advocate for the highest treatment standards and the most compassionate care for patients with addiction, and seeks to hasten the day when all our patients can easily access state-of-the-art treatment in a healthcare system and world that do not stigmatize their disease. ASAM believes it is time to make targeted changes to Part 2 to realize this goal.

 

Email questions and comments to advocacy@asam.org