Senators Call on HHS to Comply with 2020 Law While Reshaping SUD Privacy Protections

A bipartisan group of U.S. senators asked the Biden administration to tweak its proposed rule focused on addiction treatment privacy to better align with a law meant to prevent opioids from being prescribed to those in recovery.

On Tuesday, the senators sent an open letter to the U.S. Department of Health and Human Services (HHS) calling on the agency to ensure the rule matches up with the Protecting Jessica Grubb’s Legacy Act.

“Today’s letter recommends improvements to those proposed changes to ensure HHS is fully implementing the Legacy Act as Congressionally intended,” the letter states.

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Released November 2022, the proposed rule is intended to bring 42 CFR part 2, a segment of federal law that calls for strict confidentiality of substance use disorder patient records, in sync with other major patient confidentiality laws such as the Health Insurance Portability and Accountability Act of 1996 (HIPAA). 

The proposed rule has so far garnered significant attention. The two-month-long public comment period amassed 232 comments.

The behavioral health industry has sought to reform 42 CFR part 2 because it unsuccessfully balances the need to protect the anonymity of people seeking addiction treatment with the need to reduce administrative burdens in health care. Specific fallout from the rule includes low adoption of electronic health records (EHRs) in the behavioral health industry.

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The senators who signed off on the letter — Shelley Moore Capito (R-W.Va.), Joe Manchin (D-W.Va.), Jeff Merkley (D-Ore.), Amy Klobuchar (D-Minn.), and Susan Collins (R-Maine) — specifically highlight one-time initial written consent to share information between health care provider, one-time written revocations to records sharing, clarification around intermediaries and calls for additional technical assistance.

“Now, more than two years since the passage of the Legacy Act, it is important that we finalize this rule,” the letter states. “This will allow us to improve care coordination, while protecting patient privacy, in order to ensure we are addressing the drug epidemic to our fullest potential.”

The Protecting Jessica Grubb’s Legacy Act was passed in March 2020 as part of the larger Coronavirus Aid, Relief, and Economic Security (CARES) Act.

Pending new rules, 42 CFR part 2 remains in effect.

“While we are pleased to see alignment with HIPAA … we have concerns regarding ensuring there is clarity to reduce administrative burden and prevent unnecessary data segmentation,” the letter states. “We hope that with some additional clarity, we will be able to meet the goals of reducing administrative burdens and ensuring certain providers will be able to share information confidently.”

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