HHS Proposed Rule Aligns Regulation on Confidentiality of Substance Use Disorder Treatment Records with HIPAA

by Kathie McDonald-McClure

On November 28, 2022, the Secretary for the United States Department of Health & Human Services (HHS) released a Proposed Rule to amend the requirements in Title 42, Part 2, on confidentiality of substance use disorder (SUD) patient records in federally assisted Part 2 Programs.  Part 2 protects the confidentiality of SUD patient records (which generally include alcoholism, alcohol abuse, and drug abuse treatment and prevention records) by restricting the circumstances under which Part 2 Programs or other lawful holders can disclose such records.

Section 3221 of the CARES Act of 2020, enacted by Congress on March 27, 2020, in response to the COVID-19 pandemic, in effect, had amended Title 42, Part 2, to align it with HIPAA but also required HHS to implement these amendments in the Part 2 regulation through the rule-making process. The 260-page Proposed Rule, in sum, would incorporate requirements and definitions from the HIPAA rules into the 40-year-old Part 2 regulation, including HIPAA’s consent, disclosure, de-identification, unsecured PHI and breach notification requirements, as well as HIPAA penalties for noncompliance.

Part 2 Compliance Challenges. For years, providers who are subject to both HIPAA and Part 2’s separate privacy requirements for SUD records have had to grapple with identifying and segregating SUD records that are subject to Part 2 from records that are subject only to HIPAA. In the Proposed Rule, HHS acknowledges that this has contributed to ongoing operational and compliance challenges for providers. HHS notes several examples of this challenge, including the following:  

For example, once a HIPAA covered entity or business associate disclosed PHI to a person who was not a covered entity or business associate, the information was no longer protected by the Privacy Rule, and thus the Privacy Rule’s limitations on uses and disclosures did not apply. In contrast, Part 2 strictly limited the re-disclosure of Part 2 records by any individual or entity that received a Part 2 record directly from a Part 2 program or other “lawful holder” of patient identifying information, absent written patient consent or as otherwise permitted under the regulations.

(Proposed Rule, pp. 19-20.)

SUD Treatment De-Stigmatization & Coordination. HHS additionally notes that the continued segregation of Part 2 Program SUD records sets these records apart in ways that perpetuate the stigma surrounding a person with SUDs.

Prior to passage of the CARES Act, Congressional hearings on the Opioid Crisis had already highlighted the need for HHS to promulgate regulations modifying the confidentiality requirements for Part 2 records to align with HIPAA. Testimony before Congress was that SUD records were being withheld in ways that inhibit care coordination between providers of a person’s mental health and physical health, conditions that are inextricably linked. In the HHS Announcement of the Proposed Rule, Secretary Becerra says, “This proposed rule would improve coordination of care for patients receiving treatment while strengthening critical privacy protections to help ensure individuals do not forego life-saving care due to concerns about records disclosure.” 

Summary of Changes. Some of the most significant changes would include:

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