Understand the Latest on Confidentiality of Patient Information

Substance use treatment professionals often find it challenging to strike a balance between protecting the confidentiality of patient information and offering comprehensive care that is integrated with services from other providers. Clinicians and their employers now must familiarize themselves with the implications of the newly enacted changes in federal confidentiality protections affecting substance use treatment.

The Department of Health and Human Services (HHS) on Feb. 8 issued a final rule governing the Confidentiality of Substance Use Disorder Patient Records under the 42 CFR Part 2 statute. Federal officials describe the changes as facilitating coordination among a patient’s providers and enhancing integration of behavioral health information with other medical records.

But on the flip side, some opponents of the changes believe the new rule will come at a price of compromising the trust patients have in their personal data not being exposed. There remains fear within the industry that without that sense of trust, too many patients in need of treatment will avoid seeking care.

Amid this concern, providers must take the time to understand the key elements of the Part 2 statute and how they could alter the dynamics of the patient-clinician relationship.

Perhaps the most impactful new provision allows a single Part 2- compliant patient consent to suffice for all future uses and disclosures for treatment, payment and health care operations as defined by the Health Insurance Portability and Accountability Act (HIPAA). HHS explains that a central purpose of the Part 2 changes involves aligning the statute more closely with HIPAA regulations. Organizations that remain concerned about the implications of the final rule for real-world care consider it essential for providers to explain clearly to patients what this single consent means.

As Legal Action Center attorney Jacqueline Seitz told Alcoholism & Drug Abuse Weekly earlier this year, “In order for the consent to be an effective tool at protecting privacy, it needs to be obvious what the terms are, it must be entered into freely, not under coercion and in language that both the patient and the provider understand.”

Other important provisions of the Part 2 final rule include:

• A new definition of substance use disorder (SUD) counseling notes, along with a requirement for specific consent from an individual for their disclosure. This provision more closely aligns SUD counseling notes with HIPAA’s protections for psychotherapy notes in mental health treatment.
• Language clearly stating that covered entities under Part 2 don’t have to segregate patient records based on the single consent from other records.
• Alignment of patient rights to file complaints and receive documentation with the rights set out under HIPAA.
• Expanded protections for Part 2 records from use and disclosure in civil, criminal, administrative and legislative proceedings.

Another area that will remain top of mind for patient advocates involves the absence (so far) of antidiscrimination provisions for patients that Congress mandated when it passed the CARES Act. While it is expected that a separate federal rulemaking process will take care of this, any long delays in implementing antidiscrimination provisions will only add to concerns that patient privacy will be compromised in the interim.

The delicate balance between protecting patients and improving care quality remains. It becomes critical in this environment to align with partners who are committed to putting patients first. We at Sigmund Software will stay informed on how the new rule is implemented in practice, as we help the industry continue to move forward on a path of optimizing care.