NH Legal Perspective: Proposed Federal Changes Would Remove Obstacles for Substance Abuse Care

This article was originally posted by the Union Leader and can be found here.

NH Legal Perspective: Proposed Federal Changes Would Remove Obstacles for Substance Abuse Care

By: Jason Gregoire

October 19, 2019

New Hampshire has been hit hard by the opioid crisis. In response, the U.S. government has awarded hundreds of millions of dollars in grants to fund substance use disorder (SUD) treatment programs and establish regional Integrated Delivery Networks of health care providers who exchange information regarding shared patients with treatment programs and behavioral health diagnoses to encourage coordination of care as these patients travel through the health care system.

The state of New Hampshire has also devoted significant resources to this public health epidemic, such as establishing the Doorway programs. Although the influx of state and federal funds has helped ameliorate this crisis, some have expressed frustration that federal regulations that protect the confidentiality of SUD treatment information are preventing health care providers from effectively coordinating care and exchanging information necessary to provide safe treatment.

These regulations, known colloquially as “Part 2,” generally prohibit SUD treatment programs from disclosing records or information about patients without a signed patient consent. The consent requirement seems simple, but can present significant hurdles when exchanging records through electronic health information exchanges and prescription drug monitoring databases as well as with drug courts, probation offices, and housing programs.

In response to a barrage of requests from health care trade groups and providers to align Part 2 with the less-stringent federal HIPAA regulations, on Aug. 26, the U.S. Substance Abuse and Mental Heath Services Administration (SAMHSA) published a proposed rule to modify Part 2 in order to remove barriers to care coordination and exchange of information. Although the proposed rule does not align Part 2 with HIPAA, this rule takes steps in that direction. The key provisions of the proposed rule are described below.

First, providers that do not operate SUD treatment programs often wonder whether receiving oral or paper information from a SUD treatment program about a shared patient renders the non-SUD providers’ records subject to Part 2. For example, if a SUD treatment program calls a primary care provider to discuss the medication regimen of a shared patient, and the primary care provider records notes in her medical record, is the primary care provider’s record subject to Part 2? The proposed rule clarifies this confusion by confirming that while paper records created by a SUD treatment program and disclosed to a non-SUD treatment provider are subject to Part 2, records created by a non-SUD provider are not subject to Part 2.

Second, currently if a patient wants to disclose his SUD treatment records to an organization that does not provide treatment such as a drug court or a housing agency, the patient must sign a consent form that lists the name of both the organization and the name of a specific individual at the organization who is authorized to receive the records.

This seemingly innocuous requirement has served as a barrier to sharing information with those who need it because patients often do not know the name of the appropriate individual or the person designated on the consent form leaves her job thus rendering the consent form invalid. The proposed rule would remove the requirement of identifying an individual and simply allow designation of the organization to whom information may be disclosed.

Third, Part 2 does not currently allow opioid treatment programs to report methadone or buprenorphine dispensing information to state prescription drug monitoring programs. The proposed rule would allow opioid treatment programs to disclose dispensing records for these medications to prescription drug monitoring programs with patient consent. Importantly, however, Part 2 will continue to prohibit law enforcement use of SUD records in criminal prosecutions against patients.

While some have expressed concern that the changes described above will undermine the confidentiality of SUD information, others have lamented that SAMHSA has not fully aligned Part 2 with HIPAA. Health and Human Services Secretary Alex Azar has stated that SAMHSA is unable to align Part 2 with HIPAA until Congress amends the corresponding federal statute. Bills are currently pending in both the U.S. House and Senate on this important issue.

Those interested in submitting comments on the proposed rule must do so no later than Oct. 25. Stay tuned.