Jon Tomes

Although the topic of this blog item is slightly off the topic of HIPAA, it is sufficiently related to HIPAA to merit analysis. 42 C.F.R. Part 2 is the federal regulation that provides privacy protection for federally funded substance abuse treatment information. It relates to HIPAA in that HIPAA preempts―that is, does away with―federal and state laws that are inconsistent with HIPAA unless, among other exceptions, the law provides more privacy protection than HIPAA does. And 42 C.F.R. Part 2 does. So a disclosure may be proper under HIPAA but still be improper under the substance abuse protections of 42 C.F.R. Part 2.

When 42 C.F.R. Part 2 was adopted, it was out of concern that employers and others could use substance abuse treatment information to harm addicted individuals, thus chilling their willingness to get treatment. Whereas HIPAA does not require a signed consent for treatment, 42 C.F.R. Part 2 did. Many mental health practitioners, however, found that the substance abuse treatment protections hampered coordination among providers and sometimes put client safety at risk. For example, HIPAA’s authorized disclosure without consent to avert a serious and imminent risk to a named individual or the public was “trumped” by 42 C.F.R. Part 2’s requirement for a signed consent or court order. What mental health client is going to consent to releasing to his wife and to law enforcement the fact that he has made a credible threat to kill his wife?

The changes maintain the basic framework for the protection of substance abuse treatment records and still restrict the use of client records in criminal prosecutions of them. The rule still requires written consent from a client before their treatment records can be shared, except in limited circumstances. Records can be shared without consent only if a court order is received, in a genuine medical emergency, and for the purpose of scientific research, audits, and substance use disorder (“SUD”) program evaluations.

Earlier this month, HHS released a fact sheet, SAMHSA 42 CFR Part 2 Revised Rule, that details the changes at https://www.hhs.gov/about/news/2020/07/13/fact-sheet-samhsa-42-cfr-part-2-revised-rule.html.