Federal regulations at 42 CFR Part 2 (Part 2) protect patient records created by federally assisted programs for treatment of substance use disorders (SUDs). Part 2 generally requires a patient’s written consent before a Part 2 program provider can disclose patient records to another party.
Typically, when a patient consents to share Part 2 records, the recipient may only redisclose those records to a third party if the patient specifically consents to the redisclosure. Critics of Part 2’s redisclosure requirements maintain that the “no redisclosure” rule can deny patients life-saving care. What if, these critics say, information barred from redisclosure is needed by, say, a patient’s primary care physician who prescribes the patient medications that have harmful interactions with the substance to which a patient may be addicted?
HHS has responded to the criticism by issuing a Notice of Proposed Rulemaking (Proposed Rule) in November of 2022. The proposed rule updates Part 2 to allow Part 2 programs to use and share patients’ records following a single signed consent “for all future uses and disclosures for treatment, payment, and healthcare operations.” In other words, the proposed rule allows provider sharing of records in a similar manner to which HIPAA permits such sharing. More information about 42 CFR Part 2 and HIPAA care coordination is provided below.
42 CFR Part 2 and HIPAA Care Coordination: What’s in the Proposed Rule?
The proposed rule allowing for enhanced 42 CFR Part 2 and HIPAA care coordination permits Part 2 records to be redisclosed in any manner currently permitted by the HIPAA Privacy Rule, with certain exceptions. Per HHS Secretary Xavier Becerra, this change to Part 2 would “improve coordination of care for patients receiving treatment… To help ensure individuals do not forego life-saving care due to concerns about records disclosures.”
Lifting the existing re-disclosure rule allows for sharing of a significant amount of information that cannot currently be redisclosed.
Part 2 currently prevents re-disclosure of records that relate to “the identity, diagnosis, prognosis, or treatment of any patient” regarding programs that involve:
- SUD education;
- Prevention;
- Training;
- Treatment;
- rehabilitation;
- or research that are run or overseen directly or indirectly by any U.S. government department or agency.