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Written Agreement Requirement for Disclosure of Part 2 Records

Disclosure of Part 2 Records for Payment or Health Care Operations Requires Written Agreement

Regulations issued by SAMHSA in January of 2018, permit a lawful holder of Part 2 Records (relating to alcohol or substance abuse treatment) to disclose those records, with written consent of the patient, to its contractors, subcontractors, or legal representatives to carry out payment or healthcare operations on behalf of the lawful holder. The regulations list 17 examples of situations where a release may be considered appropriate. Disclosures to contractors, subcontractors, and legal representatives to carry out other purposes such as substance use disorder patient diagnosis, treatment, or referral for treatment are not permitted under the new rule.

In order to take advantage of the rule permitting disclosure for payment and/or health care operations, the lawful holder of the information is required to have in place a written contract or comparable legal instrument with the contractor or voluntary legal representative, which provides that the contractor, subcontractor, or voluntary legal representative is fully bound by the provisions of part 2 upon receipt of the patient identifying information.

In addition to having a proper contract in place, when making any such disclosures, the lawful holder must take the following further steps:

  • furnish such recipients with the notice required under ยง 2.32 of the regulations;
  • require such recipients to implement appropriate safeguards to prevent unauthorized uses and disclosures; and
  • require such recipients to report any unauthorized uses, disclosures, or breaches of patient identifying information to the lawful holder.

The lawful holder may only disclose information to the contractor or subcontractor or voluntary legal representative that is necessary for the contractor or subcontractor or voluntary legal representative to perform its duties under the contract or comparable legal instrument. Contracts may not permit a contractor or subcontractor or voluntary legal representative to re-disclose information to a third party unless that third party is a contract agent of the contractor or subcontractor, helping them provide services described in the contract, and only as long as the agent only further discloses the information back to the contractor or lawful holder from which the information originated.

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John H. Fisher

Health Care Counsel
Ruder Ware, L.L.S.C.
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P.O. Box 8050
Wausau, WI 54402-8050

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