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Confidentiality of Substance Use Disorder Patient Records

New SAMHSA Clarifying Regulations for Part 2 Program Records

SAMHSA Regulations Substance Abuse RecordsNew Final regulations were issued on January 2, 2018 by the Substance Abuse and Mental Health Services Administration (SAMHSA). The new Final regulations supplement SAMHSA’s major regulation change that was finalized in regulations that were released in January of 2017. The new, 2018 Final regulations add some clarification and more specificity to some of the requirements of the 2017 rule.

These rules, commonly known as the “SAMHSA Rules” or “Part 2” describe special confidentiality restrictions that apply to Substance Use Disorder Patient Records related to certain substance use disorder treatment programs that receive federal financial assistance. The confidentiality requirements that apply to treatment records covered by the SAMHSA Rules are more stringent than apply to general patient health records. The special restrictions on these records has been in existence for decades, with the last major re-write occuring in 1987.

SAMHSA began a process of reconstituting the SAMHSA Rules in February of 2016, when it published a Notice of Proposed Rulemaking (NPRM) in the Federal Register (81 FR 6988). SAMHSA’s stated purpose for revising the rules was to reflect development of integrated health care models and the use of electronic exchange of patient information. At the same time, SAMHSA’s aim was to accomodate new technologies while maintaining confidentiality protections for patients of covered treatment programs who could encounter discrimination if their information is not properly protected.

TheĀ  Final Rules that we published on January 18, 2017, provided for greater flexibility in disclosing patient identifying information within the health care system while continuing to address the need to protect the confidentiality of substance use disorder patient records. At the same time that it published the 2017 Final Rule’s, SAMHSA issued a supplemental notice of proposed rulemaking (SNPRM) to solicit public comment on additional proposals in a variety of areas covered by the SAMHSA Rule. The new Final Rules that were issued on January 2, 2018, address many of the issues suggested in the SNPRM and integrate some of the 55 regulatory comments that SAMHSA received in response to the SNPRM.

SAMHSA received numerous comments asking it to consider alignment of the special restrictions applicable through the SAMHSA Rules with the Health Insurance Portability and Accountability Act (HIPAA) or the Health Information Technology for Economic and Clinical Health (HITECH) Act. It is challenging for providers to establish different requirements for special status records. By its very nature, the more restrictive requirements that are applicable to SAMHSA covered records requires providers to “triage” record requests to be certain that they are not covered by the special restrictions of the SAMHSA Rules. This is especially problematic when a provide that does not provide alcohol or substance abuse treatment receives SAMHSA protected records from another provider. SAMHSA Rules not subject receiving providers to a direct prohibition against redisclosure.

SAMHSA says that it has attempted to align the final rule with HIPAA, the HITECH Act, and their implementing regulations to the extent feasible. Yet, the more stringent SAMHSA restrictions will be difficult to completely harmonize with HIPAA and HITECH. Part 2 provides more stringent federal protections than other health privacy laws such as HIPAA and seeks to protect individuals with substance use disorders who could be subject to discrimination and legal consequences in the event that their information is improperly used or disclosed. A similar issue exists with respect to many state laws that provide more stringent privacy restrictions on records related to mental health related services. Decision trees applicable to disclosure of special treatment records can be quite complex; particularly when HIPAA premption concepts are applied as an overlay to the base analysis.

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John H. Fisher

Health Care Counsel
Ruder Ware, L.L.S.C.
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