On August 22, the Substance Abuse and Mental Health Services Administration (SAMHSA) under the U.S. Department of Health and Human Services (HHS) announced a Notice of Proposed Rulemaking, which details revisions to 42 CFR Part 2 regulations.
42 CFR Part 2 is a federal confidentiality law containing regulations that restrict the disclosure of patient records connected to federally assisted alcohol and drug abuse programs, which include county-owned and operated behavioral and mental health facilities.
Congress and the executive branch have long worked to create parity between 42 CFR Part 2 and the Health Insurance Portability and Accountability Act (HIPAA). Under HIPPA privacy rules, the disclosure of all health information needed for patient care is allowed, particularly for care coordination amongst providers and referrals. The disconnect between these two policies creates confusion over what can be shared and by whom, and barriers in the exchange of substance use disorder (SUD) treatment information between behavioral health specialists and primary care providers make care coordination difficult.
The proposed revisions released by SAMHSA intend to facilitate better coordination of care for SUD patients between health care providers and specialists and are an essential component of the federal response efforts to the opioid epidemic.
The proposed rule includes the following modifications to Part 2 regulations:
- Patients would be allowed to consent to the disclosure of their information to a wide range of entities, without having to name the specific individual receiving this information on behalf of a given entity.
- Primary care providers would be allowed to note a patient’s substance use treatment history directly on the electronic health record (EHR), though any substance use records sent to primary care providers by a 42 CFR Part 2 treatment program will still need to be segmented.
- The proposed rule broadens the term “bona fide medical emergency” to include declared emergencies from natural disasters that disrupt treatment facilities and services.
- Programs that treat individuals for opioid use disorder (OUD) would now be allowed to share and access data on drug prescribing among providers and drug consumption among patients by enrolling in state prescription drug monitoring programs (PDMPs). All data shared by these programs would still be subject to state law.
In January 2017, SAMHSA released a final rule updating the privacy provisions of 42 CFR Part 2, which were later updated again in 2018, following an open comment period in 2016. NACo submitted comments in support of the agency’s efforts while calling for further action on this issue.
While SAMHSA’s proposed rule represents an improvement over current rules governing data sharing, NACo continues to urge both the administration and Congress to fully align Part 2 requirements with HIPAA. Without changes to the proposed rule that fully align 42 CFR Part 2 with HIPAA privacy rules, counties will face barriers when providing coordinated, quality systems of care for people with SUDs while making the best use of taxpayer dollars.
Comments on SAMHSA’s latest 42 CFR Part 2 rule are due October 25, 2019. Click here to review the proposed rule. Please share any information or insights on the potential impact of this proposed rule on your county with NACo Associate Legislative Director Blaire Bryant at firstname.lastname@example.org.
- Policy Brief: Behavioral Health Matters to Counties
- Policy Brief: Enhance Counties’ Ability to Treat Mental Illness and Substance Abuse Disorders
- NACo’s official comments on the 2016 42 CFR Part 2 Proposed rule