Confidentiality is one of the core duties and ethical matters in healthcare and critical to understanding 42 CFR Part 2. Maintaining proper patient confidentiality requires that healthcare providers keep a patient's personal health information private unless the patient gives consent to release information.
If confidential information is not protected, trust is shattered, and there can be serious ramifications for the patient.
Currently, the Substance Abuse and Mental Health Services Administration (SAMHSA), has proposed a rule with regard to the confidentiality of Substance Use Disorder patient records. Specifically, 42 CFR Part 2 [SAMHSA-4162-20]. This proposed rule is intended to modernize the current regulation which has not been updated since 1987. There have been significant changes in the provision of healthcare in the past 29 years, including new models of integrated care, electronic record keeping and telehealth services.
The proposed rule is meant to simplify the electronic exchange of information for treatment and other legitimate healthcare purposes while maintaining appropriate confidentiality protections for records that might identify an individual as being diagnosed with Substance Use Disorder.
Under the current regulations, a federally assisted Substance Use Disorder program generally may only release identifiable information related to that particular diagnosis, treatment, or referral for treatment with the individual's specific rather than general consent. The goal in modernizing the Part 2 regulation is to increase opportunities for individuals with Substance Use Disorder to participate in new and emerging healthcare models, including telehealth services. The intent of the rule is to facilitate the confidential sharing of information within the healthcare system to support new models of integrated healthcare which, among other things, improve patient safety while maintaining or strengthening privacy protections for individuals seeking treatment for Substance Use Disorder. SAMHSA wants to ensure that patients with Substance Use Disorder have the ability to participate in, and benefit from, newly available, integrated services without fear of putting themselves at the risk of adverse consequences.
The proposed change is expected to result in a decrease in the burden associated with several aspects of the original rule, including requirements for consent. As patients are allowed, in certain circumstances, to include a general designation in the To Whom section of a consent form rather than being required to specify each and every recipient of the information, we are likely to see an increase in the number of individuals with substance use disorders participating in organizations that facilitate the exchange of health information such as Health Information Exchanges (HIEs), organizations that coordinate care (Accountable Care Organizations (ACOs), and Coordinated Care Organizations (CCOs). This would lead to increased efficiency and quality in the provision of healthcare services for this population.
A concern however, is that some groups are opposing the change and this is largely due to both legitimate concerns on the part of patient's rights advocates as well as the illegitimate assertions of the market place or legal system. When confidential information is leaked and certain diagnoses and/or pre-existing conditions are exposed, patients can suffer from stigma and discrimination. For example, a diagnosis of a Substance Use Disorder can be used to deny healthcare coverage, life insurance, auto insurance, employment, parental custodial rights to children, appropriate prescription medications (such as pain medication), and as justification for any number of other discriminatory practices.
A nondiscrimination provision added to 42 CFR Part 2, to explicitly prohibit discrimination in healthcare coverage, the provision of healthcare services and employment on the basis of an individual's substance abuse treatment records would help reduce stigma and discrimination in a population that has historically been judged for having a moral failing rather than a chronic illness. Additionally, including a mandatory Exclusion from Evidence provision is important in order to provide that information in violation of the regulations may not be entered as evidence in, or considered in, connection with a criminal, civil or other legal or administrative proceeding.
Substance Use Disorders are among the most prevalent psychiatric disorders seen in the United States and widespread among the general population regardless of gender, age, race and ethnicity. According to SAMHSA, almost 44 million (18%) Americans, ages 18 and older have experienced some form of mental illness and in 2014, 21.5 million Americans, ages 12 and older, were classified with Substance Use Disorder. The disorder can be mild, moderate or severe in its level of intensity and perceived or actual stigma or other discriminatory actions are oftentimes a predictor of treatment discontinuation. It is important that nondiscrimination provisions are implemented whenever applicable as the field of behavioral health continues to battle stigma and discrimination in the treatment of chronic illnesses that are often mistakenly judged or understood as poor behavioral choices.
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Dr. Kerby Stewart, M.D., is the Clinical Director of MAP Health Management, LLC. Dr. Stewart provides clinical oversight to the MAP Care Solutions division, a post-discharge telehealth recovery support system for adults, adolescents and their families who seek to achieve long-term recovery from chemical dependency.