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Regulation and Compliance > Federal Regulation

3 New Substance Use Confidentiality Rule Facts

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An arm of the U.S. Department of Health and Human Services (HHS) may have started a major new fight between patient privacy advocates and substance abuse benefits managers.

The agency, the Substance Abuse and Mental Health Services Administration (SAMHSA), has updated the regulations that govern what exactly happens when patients seek care for problems with tobacco, alcohol or other substances and then sign blanket information release forms.

SAMHSA officials say lawful holders of the patients’ information can share the patient’s information with a wide range of entities involved in paying insurance claims, including billers, medical necessity reviewers, fraud fighters, customer service representatives and insurance underwriters, and those entities’ subcontractors.

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SAMHSA says it put that list in the introduction to the regulation, rather than in the official text of the regulation, because it wants the list of entities that can get the information to be flexible, to accommodate changes in how health plans work.

But SAMHSA is not letting lawful information holders share a patient’s information with care coordinators or case managers without getting separate, express consent from the patient.

The patients should be able to decide which of their providers get information about their substance use problems, SAMHSA officials write in the introduction to the official text of the final rule.

The patient’s blanket permission form covers payment and health care operations, but it’s “not intended to encompass substance use disorder patient diagnosis, treatment or referral for treatment,” SAMHSA officials say.

The final rule “is not intended to cover care coordination or case management, and disclosures to contractors, subcontractors, and legal representatives to carry out such purposes are not permitted under this section,” officials write.

SAMHSA is getting ready to publish the final rule in the Federal Register, the U.S. government’s official vehicle for distributing regulations, Wednesday.

A preliminary copy of the final rule is available here.

For three more facts about the final regulations, read on.

A silhouette of an unhappy woman (Photo: Thinkstock)

(Photo: Thinkstock)

1. The rules governing substance use confidentiality are different from the rules that governs other types of health care. 

Privacy regulations based on the Health Insurance Portability and Accountability Act of 1996 (HIPAA) shape the confidentiality and disclosure requirements for most types of health care.

A 1987 set of regulations, the Confidentiality of Alcohol and Drug Abuse Patient Records rule, governs substance use disclosures.

The substance use confidentiality regulations are given in Volume 42 of the Code of Federal Regulations, Part 2.

Section 2.33 in Part 2 describes which entities can get a patient’s information if a patient gives written consent for a provider, plan or other entity to share information about the patient’s use of substance use treatment.

2. SAMHSA officials have mixed feelings about the relationship between Part 2 rules and HIPAA rules.

Agency officials say they want to make Part 2 requirements as much like HIPAA requirements as is practical, to make administering substance use programs cheaper and easier.

But the officials say they believe the needs of patients relying on Part 2 confidentiality regulations are different from the needs of patients relying on HIPAA privacy regulations.

“Unauthorized disclosure of substance use disorder patient records can lead to a host of negative consequences, including loss of employment, loss of housing, loss of child custody, discrimination by medical professionals and insurers, arrest, prosecution, and incarceration,” officials say.

“The purpose of the Part 2 regulations is to ensure that a patient is not made more vulnerable by reason of the availability of their patient record than an individual with a substance use disorder who does not seek treatment,” officials say.

3. SAMHSA officials recognize that their final rule may spark discussion.

The agency says its parent, HHS, will hold a meeting for stakeholders on the Part 2 regulations, including the changes in the new final rule, sometime before March 21.

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