Deadline Approaching: Review and comment by April 11, 2016
Have you seen the Substance Abuse and Mental Health Services Administration’s (SAMHSA) proposed changes to 42 CFR Part 2, Confidentiality of Substance Use Disorder Patient Records? If not, we recommend taking a look and commenting as an individual, agency/organizational, or community collaboration. Feel free to share praises and/or critiques about the proposed changes with SAMHSA.
Here are some key highlights:
- Rewind time to more than four decades ago - 42 CFR Part 2 was conceptualized and approved to provide individuals seeking substance use disorder treatment with protections for privacy and confidentiality. It was acknowledged that stigma and fear of potential repercussions (familial, employment; criminal) prevented people from seeking treatment.
- The last “substantive” update to 42 CFR Part 2 was in 1987 (approaching three decades ago).
- There have been substantial changes in the way substance use disorder treatment is provided including a greater number of integrated health care centers (primary and behavioral health) and greater use of electronic health records. As such, modernizing 42 CFR Part 2 is necessary.
- The proposed regulations will continue to apply to federally-assisted “programs“ which “holds itself out as providing, and provides substance use disorder diagnosis, treatment, or referral for treatment.”
- It proposes if agencies and organizations that have “general designation” on consent form(s) they must provide patients a list of where their information has been shared.
- Proposes agencies and organizations must have policies and procedures in place to sanitize paper and electronic records.
There are a number of other recommended changes. Naturally there are costs associated with these changes. SAMHSA estimates that it will cost the field approximately $74,217.979 in the first year. Costs include updating information technology systems; staff training; providing patients with a list of where information has been shared etc. SAMHSA acknowledges that these costs will decrease over time with a projected 10-year total (undiscounted) cost of $239,922,716.
With the adoption of the Affordable Care and Parity Acts, the field has needed the modernizing of 42 CFR Part 2: no question. Yet, some argue that these changes will hinder effective exchange of information between providers. Others argue for maintaining strong privacy protections. Even today, there are significant and potentially devastating effects for individuals who report any type of substance use, medication assisted therapy or treatment.
The Legal Action Center in New York “is the only non-profit law and policy organization in the United States whose sole mission is to fight discrimination against people with histories of addiction, HIV/AIDS, or criminal records, and to advocate for sound public policies in these areas” and has been providing advice and consultation on 42 CFR Part 2 for numerous years. We asked Legal Action Center to comment about these proposed changes and Karla Lopez, Staff Attorney, provided us with this comment:
“Legal Action Center believes SAMHSA struck an appropriate balance between maintaining the core confidentiality protections of 42 CFR Part 2 and modernizing the regulations to make it easier for patients to share their information if they choose to do so. The proposed changes create new mechanisms for patients to consent to share their information with their treating providers, including through health information exchanges and integrated care entities. Yet the proposed changes maintain the requirements that patients consent to most disclosures and that recipients of patient-identifying information are prohibiting from re-disclosing that information except as permitted by 42 CFR Part 2. This is critical in light of the stigma, discrimination, and criminal consequences that people with substance use disorders unfortunately continue to face.”
Reclaiming Futures staff do not interpret policy. We attempt to bring you the relevant information and encourage local jurisdictions to consider how these policy changes might impact local services, supports, and collaborations. If you have thoughts about these changes: be active - share them with SAMHSA here. The Legal Action Center has developed a template for providing comments on these proposed changes. Reclaiming Futures appreciates SAMHSAs efforts to modernize 42 CRF Part 2 while continuing to protect individual’s confidentiality and privacy.
Updated: February 08 2018