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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

Part 2 Coalition Applauds Bipartisan Bills to Strengthen Addiction Treatment

by | Apr 04, 2019
Download Partnership to Amend 42 CFR Part 2 Press Release

The Partnership to Amend 42 CFR Part 2 (Partnership), a coalition of nearly 50 health care organizations committed to aligning 42 CFR Part 2 (Part 2) with the Health Insurance Portability and Accountability Act (HIPAA) for the purposes of treatment, payment, and health care operations (TPO), issued the above linked statement in response to the introduction of identical bipartisan bills in both the House and Senate. The Overdose Prevention and Patient Safety Act, “OPPS Act”, was introduced by Congressmen Earl Blumenauer (D-OR) and Markwayne Mullin (R-OK) and the Protecting Jessica Grubb’s Legacy Act, “Legacy Act”, was introduced by Senators Shelley Moore Capito (R-WV) and Joe Manchin (D-WV).

In the press release, R. Corey Waller, MD, Chair of ASAM's Legislative Advocacy Committee, made the following statement:

“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.”

Click here to read more on ASAM's position on confidentiality.

Read more about ASAM's advocacy work here.