Nov 28, 2022 - Health

HHS moves to overhaul privacy rules for substance abuse patients

Illustration of the US Capitol forming the top of a red cross symbol.

Illustration: Shoshana Gordon/Axios

The federal health department is trying to harmonize privacy protections covering the records of patients being treated for substance use disorder.

Why it matters: Syncing the landmark 1996 privacy law HIPAA with tougher standards Congress passed in the CARES Act more than two years ago could prevent instances in which providers unknowingly prescribe opioids as treatment for someone with a history of addiction.

Catch up quick: The Department of Health and Human Services on Monday put forward a rule aimed at aligning privacy protections known as 42 CFR Part 2 with HIPAA — a change behavioral health advocates have said it a critical step to confronting the opioid crisis.

  • The issue became a focus in 2016, after the overdose death of a patient who was prescribed oxycodone after a hip surgery by doctors who didn’t know she was in recovery for a substance use disorder.
  • A 2017 report based on interviews with more than 100 health care providers in Oregon found Part 2 inhibited information sharing and was “poorly understood” and “a source of legal confusion.”
  • But Congress didn’t address this until a provision was folded into the CARES Act.
  • More than 100,000 people in the U.S. died from overdose deaths in the first year of the pandemic, per provisional CDC data.

Details: To facilitate information sharing between providers, HHS on Monday proposed requiring one-time patient consent for disclosure of treatment and allowing HIPAA-covered entities to access those records.

  • The HHS rule would also give patients the right to know where and when their information was disclosed and to request restrictions on what providers are allowed to know.
  • It would further prohibit courts from using Part 2 records against the patient in civil or criminal proceedings.
  • Violations would be subject to HIPAA fines and criminal penalties, with a complaint process established to provide oversight when the law is broken. There are no such provisions in the Part 2 regulations.

What they’re saying: The suggested changes would address the fragmented coordination of care and discourage negative stereotypes and slow treatment people with substance use disorders face, said HHS Secretary Xavier Becerra in a statement.

  • Aligning the law with HIPAA doesn’t mean providers will just “open up and share records with the world,” Maeghan Gilmore, vice president of government affairs for the Association for Behavioral Health and Wellness, told Axios.
  • “It’s really about, ‘How can health care providers and health care teams provide the best care for individuals and not treat substance use disorder differently than mental health or other medical issues?’”

Where it stands: The proposed rule will be published on Friday and be open to public comment for 60 days.

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