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            Published On January 27, 2020

            POLICY

            Who Needs to Know?

            Addiction treatment comes with its own strict privacy rules. Perhaps it shouldn’t.

            Entering a drug rehab program has long come with the promise that the treatment will be kept secret from the rest of the world. Since 1975, a federal regulation called 42 CFR Part 2—or Part 2, for short—mandates this discretion for any addiction program that gets U.S. funding. Even when a patient wants to share the treatment history of a substance use disorder (SUD) with a primary care doctor, those records have to remain segregated from the rest of the medical record so no one else can view them.

            Absolute patient privacy can come at a cost, however, and this has come into sharp focus in the trenches of the opioid crisis. Psychiatrist Bruce Schwartz remembers a patient who never told his primary care physician that he was taking methadone, a synthetic opioid, to curb his opioid cravings. The physician unwittingly prescribed opioids for pain, which led to a nonfatal opioid overdose.

            Schwartz is president of the American Psychiatric Association and professor and deputy chair of psychiatry and behavioral sciences at Montefiore Medical Center in New York City. He believes that Part 2 rests on outdated ideas about addiction that not only put patients in danger but “perpetuate the stigma of this medical problem and prevent people from seeking treatment,” he says.

            Many of the leading voices in addiction recovery have called for reform of Part 2. “The protections were visionary and necessary in the 1970s, but now they serve as a barrier to coordinated care,” says Jennifer Lohse, vice president and general counsel for the Hazelden Betty Ford Foundation, the largest not-for-profit SUD treatment provider in the country.

            In August 2019, the U.S. Department of Health and Human Services proposed a series of updates to Part 2, citing the opioid crisis as a primary reason for the changes. If they go into effect, physicians or other providers who see patients after their recovery treatment would still need consent to acquire the SUD treatment records, but they would be able to incorporate some of that information in patients’ electronic medical records. Those would then be available to any treating clinician, such as an emergency physician. Another proposed change would seek to avoid prescribing errors by giving providers access to a database showing whether a patient is receiving medications to treat substance abuse.

            Not everyone is happy about these moves. Some patient advocacy groups and treatment programs contend that entering addiction history in an electronic medical record could lead to disastrous consequences. Though medical records are protected by the Health Insurance Portability and Accountability Act (HIPAA), which restricts who can see them without a patient’s consent, that law doesn’t apply to some third parties—law enforcement, insurers, employers and the courts. If information about a stay in rehab, for example, is added to a medical record and seen by one of those entities, a patient could risk losing a job or custody of children, be denied insurance or be subject to arrest.

            “Weakening the current protections for patient privacy contained in Part 2 will not fix what is broken,” said H. Westley Clark in a statement from the Legal Action Center, an advocacy organization for people with addiction and other issues. “Instead, it will drive even more people away from substance use disorder treatment and penalize the over 20 million people in recovery from substance use disorders.” Clark is the former director of the Substance Abuse and Mental Health Services Administration’s Center for Substance Abuse Treatment.

            Others say the proposed Part 2 rule changes don’t go far enough. They want to get rid of any requirement for special patient consent to gain access to SUD records. “We want to eliminate all barriers between physicians, counselors, pharmacists and others involved in the patient’s care,” says Lohse of Hazelden Betty Ford, one of more than 50 groups, including the American Psychiatric Association, that have formed a partnership to advocate for having SUD records subject only to existing HIPAA laws, without the extra steps of Part 2.

            Lohse argues that most patients seeking treatment have no expectation of absolute secrecy beyond the confidentiality afforded throughout health care. And quality treatment for SUD increasingly involves multiple providers, including primary care physicians whose medical records fall under HIPAA, not Part 2. “Worries about privacy are not keeping patients from seeking care at non-Part 2 facilities,” she says. As for concerns that HIPAA records are vulnerable to law enforcement, she says the Part 2 reform would actually strengthen law enforcement protections for SUD patients.

            The American Medical Association takes a middle-of-the-road position on SUD patient privacy. “We know there is value in having SUD information available at the point of care, but we believe it’s important for patients to decide whether they want to disclose this information,” says Laura Hoffman, assistant director of federal affairs for the AMA. “We also want patients to continue to have the option to confidentially access care at a Part 2 program so that they have somewhere to seek treatment without the fear that someone will find out about it.”

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