HHS proposes ‘modern’ approach to substance abuse privacy

HHS is proposing to update the Confidentiality of Alcohol and Drug Abuse Patient Records regulations to improve information exchange of the medical records of patients with substance abuse disorders. The proposals are designed to improve care coordination and modernize patient privacy protections by updating rules that were promulgated in 1975 and last updated in 1987. HHS believes that changes must be made to the confidentiality rules in order to permit patients seeking substance abuse treatment to participate effectively in new integrated health care models. The Proposed rule is set to publish in the Federal Register on February 9, 2016. HHS is accepting comments on its proposal through April 11, 2016.

Current protections

The Proposed rule acknowledges that the current laws and regulations governing substance abuse health record confidentiality were developed out of fears that the use of information regarding an individual’s substance abuse treatment in a criminal prosecution would deter individuals from seeking treatment. Under the current regulations, a federally assisted substance use disorder program can only release identifiable information related to substance use disorder diagnosis, treatment, or referral for treatment with the individual’s express consent.


The Proposed regulations are HHS’ attempt to revise 42 C.F.R. Part 2 to ensure patients can participate in newer integrated care models while ensuring that patients are not made more vulnerable through increased information sharing. HHS acknowledges the legitimate privacy concerns of patients seeking treatment for substance abuse. Some of the concerns noted by the Proposed rule include the potential for loss of employment, loss of housing, loss of child custody, discrimination by medical professionals and insurers, arrest, prosecution, and incarceration.

“This proposal will help patients with substance use disorders fully participate and benefit from a health care delivery system that’s better, smarter and healthier, while protecting their privacy,” said Secretary Burwell in a press release. “We are moving Medicare, and the health care system as a whole, toward new integrated care models that incentivize providers to coordinate and put the patient at the center of their care, and we are modernizing our rules to protect patients.”


The specific changes would facilitate electronic exchange of patient records by allowing patients to make a general designation in the “To Whom” section of their patient consent form. HHS believes that the change would facilitate the sharing of patient information within the health care system, while decreasing burdens on participants in integrated health care models. Under the proposal, entities named on a consent form that disclose information under a general designation must, upon request of the patient, provide the patient with a list of entities to which their information has been disclosed. The Proposed rule contemplates that such entities might include entities like Accountable Care Organizations and patient-centered medical homes.