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SAMHSA Issues Notice of Public Listening Session on 42 C.F.R. Part 2, the Confidentiality of Alcohol and Drug Abuse Patient Records Regulations


Email Alert

May 14, 2014

By Barbara Zabawa*

The federal rules that govern the use and disclosure of alcohol and drug abuse records (AODA record rules) have not been touched since 1987, despite the substantial revolution in health care technology, payment, and delivery.

Recognizing these changes and even more on the horizon, on Monday, May 12 the Substance Abuse and Mental Health Services Administration (SAMHSA) within the U.S. Department of Health & Human Services issued notice of a public listening session to obtain input from stakeholders on updating the federal AODA record rules. In the notice of the listening session, found at 79 Fed. Reg. 26929 (May 12, 2014), SAMHSA hints at a future rulemaking and desires all interested parties to share their views prior to such a rulemaking.

There are two primary driving forces behind the listening session and future rulemaking: (1) integrated and coordinated care initiatives, such as accountable care organizations or health information exchange (HIE) organizations; and (2) electronic health record (EHR) systems. Both of these forces in health care have the potential for greater sharing of information, including AODA records. The current AODA record rules create difficulties to accomplish the goals of coordinated care and EHR systems. Specifically, the AODA record rules apply to federally funded individuals or entities that "hold themselves out as providing and provide, alcohol or drug abuse diagnosis, treatment or treatment referral," including units within a general medical facility that hold themselves out as providing diagnosis, treatment, or treatment referral. As more substance abuse treatment is provided in general health care settings, it is difficult to determine whether the AODA record rules apply to the myriad of health care organizations involved in coordinated care efforts.

Furthermore, the current rules have strict consent requirements that prohibit listing future un-named providers on the consent form. Each time a new provider joins coordinated care organizations, the organization needs to update the consent form.

The strict redisclosure provision of the current rule forces most EHR systems to separate AODA records from the rest of the patient's medical record or apply the AODA record protections to the entire medical record. Either approach may stifle efforts to share important information between care providers and improve patient outcomes.

Sharing AODA records for purposes of care coordination and population management also is restricted by the current AODA record rules. The current rules prohibit the sharing of AODA records for these purposes without consent.

Finally, the current AODA record rules limit the ability of payers, HIEs, and care coordination organizations to use AODA records for research, audit, or evaluation purposes, functions of growing importance as the health care sector moves toward using health information to improve health care quality and outcomes.

The overarching concern with regard to any updates to the AODA record rules is ensuring that the rules continue to adequately protect patient privacy. SAMHSA indicates its wish is to facilitate information exchange while respecting the legitimate privacy concerns of patients due to the potential for discrimination and legal consequences of sharing sensitive AODA information. SAMHSA realizes that protecting the confidentiality of AODA records is still necessary so that patients feel free to seek treatment without fear of compromising their privacy.

To find the appropriate balance between sharing AODA records and protecting patient privacy, SAMHSA welcomes attendance at the listening session, to be held on Wednesday, June 11 from 9:30 am to 4:30 pm, either in person or via webcast. In addition, SAMHSA invites comments regarding the need for updates to the AODA record rules. Learn more about the listening session and the areas SAMHSA invites for comment.

*We would like to thank Barbara J. Zabawa (WPS Health Insurance, Monona, WI) for authoring this email alert.

The Behavioral Health Task Force is supported by the following work groups: Military/Veterans; Payers; Providers/Clinicians; Risk Management; Rural; and State/Government.


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