New Privacy Shifts to 42 CFR During COVID-19

By [email protected]

A recent Filter article, https://filtermag.org/cares-act-addiction-patients/ raised concerns that the federal 42 CFR Part 2 regulation, which governs confidentiality of substance use disorder treatment records, will be greatly loosened under the CARES ACT signed into law by President Trump on March 27. The new regulations from the CARES Act will not take effect for 12 months, but they’re coming, and advocates are worried.

In addition, recent SAMHSA guidance during the COVID-19 emergency acknowledges the need for telehealth for continuity of care, so has lifted 42 CFR restrictions:

Under 42 U.S.C. §290dd-2(b)(2)(A) and 42 C.F.R. §2.51, patient identifying information may be disclosed by a part 2 program or other lawful holder to medical personnel, without patient consent, to the extent necessary to meet a bona fide medical emergency in which the patient’s prior informed consent cannot be obtained.

The onus is on the provider to document the presence of a medical emergency.

While you typically consent to release of your SUD treatment records to treatment payers, under the CARES ACT, there is no way to segment the reason the information might be used in future. While under 42 CFR Part 2, a court order is required to obtain people’s SUD treatment information, under HIPAA, no such court order is required. The concern is that the loosening of 42 CFR to allow SUD information into the electronic records system could open the door to disclosure to outside entities without the client’s consent because the clients could lose control over their data. While this might enable more effective care coordination between mental health, physical health, and substance abuse treatment services, there is a very real concern that clients would not want to seek treatment is they couldn’t protect their privacy.

As a substance abuse treatment professional I am well aware of the stigma that continues to follow alcoholism and drug addiction, and I have worked with recovering people over the years facing custody challenges that would have had their recovery completely derailed if opposing counsel was able to access addiction treatment records. Confidentiality is an overarching ethical mandate to providing recovering the people the best possible option to release the burden of unspoken shame and trauma. As CADCs, we need to pay attention to these shifts in confidentiality statutes and the subsequent impact on our clients.

Mary Crocker Cook, D.Min., LMFT, LAADC, CADCII

ADS Program Coordinator