HHS Proposes New Protections for Substance Use Disorder Patients to Improve Care Coordination

The Biden administration has unveiled a new proposed rule that would make it easier to coordinate the care of those with a substance use disorder. 

On Monday, the civil rights office of the U.S. Department of Health and Human Services (HHS) Department, along with the Substance Abuse and Mental Health Services Administration (SAMHSA), posted a notice of proposed rulemaking that would change 42 CFR part 2.

This bit of federal regulation makes it more difficult for providers to disclose and share information about patients treated for a substance use disorder in the name of privacy. However, several stakeholders in the behavioral health space say the law is archaic and bogs down needed care coordination.

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A previous congressional report cites 42 CFR part 2 as a barrier to electronic health record adoption. And nearly all Medicaid managed care plans say 42 CFR part 2 prevents them from more deeply embracing behavioral health, according to a survey by the Institute for Medicaid Innovation.

“Varying requirements of privacy laws can slow treatment, inhibit care, and perpetuate negative stereotypes about people facing substance use challenges,” HHS Secretary Xavier Becerra said in the HHS announcement. “This proposed rule would improve coordination of care for patients receiving treatment while strengthening critical privacy protections to help ensure individuals do not forego life-saving care due to concerns about records disclosure.”

The rule comes after Congress mandated changes to 42 CFR part 2 through the CARES Act, enacted in March 2020. A year later, SAMHSA said it was still working on a proposed rule with HHS.

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Among its provisions, the proposed rule would:

— Allow patients to sign one release for a provider’s future uses and disclosures of 42 CFR part 2 records

— Permit some redisclosure by entities that receive 42 CFR part 2 records

— Limit the use and disclosures 42 CFR part 2 records in court proceedings

— Create a patient’s right to an accounting of 42 CFR part 2 records disclosure and to request records restrictions

— Allow existing criminal and civil penalties of records violations

— Forbid providers bound by 42 CFR part 2 from requiring patients to waive Part 2 complaint rights

Overall, HHS says the new rule is meant to better align the information protected by 42 CFR part 2 with other major health information protection laws.

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the Health Information Technology for Economic and Clinical Health (HITECH) Act are the two most significant laws.

42 CFR part 2 as it stands today is still in effect.

“One of SAMHSA’s priorities is working to make effective treatments and recovery supports for SUD more accessible to all Americans,” Miriam Delphin-Rittmon, HHS assistant secretary for mental health and substance use, said in the announcement. “Bringing Part 2 requirements into closer alignment with HIPAA will support more effective coordination for people accessing care. At the same time, the proposed rule mitigates the discrimination and stigma that we know too often people with SUDs experience.”

Delphin-Rittmond is also the leader of SAMHSA.

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