HHS Proposes Rule to Ease Some Substance Abuse Disclosures

Allows patients to agree to broader release of info

WASHINGTON — Consent requirements would be eased for providers releasing their patients’ substance abuse diagnosis and treatment records under a proposed rule released earlier this week by the Department of Health and Human Services (HHS).

The proposed rule seeks to “modernize the [current federal law on substance abuse confidentiality] by facilitating the electronic exchange of substance use disorder information for treatment and other legitimate health care purposes, while ensuring appropriate confidentiality protections for records that might identify an individual, directly or indirectly, as having or having had a substance use disorder,” according to the text of the regulation.

The authors noted that the confidentiality law was originally written “out of great concern about the potential use of substance abuse information against individuals, causing individuals with substance use disorders to not seek needed treatment. The disclosure of records of individuals with substance use disorders has the potential to lead to a host of negative consequences including: loss of employment, loss of housing, loss of child custody, discrimination by medical professionals and insurers, arrest, prosecution, and incarceration.”

Under the current law, “a federally assisted substance use disorder program generally may only release identifiable information related to substance use disorder diagnosis, treatment, or referral for treatment with the individual’s express consent,” the authors continued. “Now, over 25 years later, this proposed rule would make policy changes to the regulations to better align them with advances in the U.S. health care delivery system while retaining important privacy protections.”

For example, the Substance Abuse and Mental Health Services Administration (SAMHSA) “is proposing to allow, in certain circumstances, a patient to include a general designation in the ‘To Whom’ section of the consent form” — that is, allowing a general group of providers to disclose information — if the form includes an “explicit description” of the amount and kind of information that might be disclosed, the authors wrote.

SAMHSA also wants to require that patients who are permitting such a general disclosure can request and receive a list of entities to which their information has been disclosed.

With patients being able to use such a general designation, “we anticipate there would be more individuals with substance use disorders participating in organizations that facilitate the exchange of health information (e.g., health information exchanges) and organizations that coordinate care (e.g., accountable care organizations) … leading to increased efficiency and quality in the provision of healthcare for this population,” they continued.

In addition, SAMHSA also wants providers who disclose this information “to have in place formal policies and procedures addressing security, including sanitization of associated media, for both paper and electronic records.”

The rule also would change the medical emergency exception to the disclosure regulations “to give providers more discretion to determine when a ‘bona fide medical emergency’ exists.”

The rule also addresses medical research; it seeks to allow researchers that have substance abuse treatment data to link to data sets from federal data repositories.

HHS estimated that the costs associated with the new rule would be $74 million the first year, $47 million the second year, and about $15 million annually in years 3 through 10.

HHS is seeking comments on this rule; comments will be due by April 9th.