State Attorneys General Urge Congress to Align Part 2 Regulations with HIPAA

The National Association of Attorneys General (NAAG) has urged leaders of the House and Senate to make changes to the Confidentiality of Substance Use Disorder Patient Records regulations, known as 42 CFR Part 2.

The regulations in question, which NAAG called “cumbersome [and] out-of-date,” restrict the uses and disclosures of substance abuse treatment records.

Under HIPAA, protected health information (PHI) can be shared between providers and caregivers for purposes related to treatment, payment, and healthcare operations without first obtaining consent from the patient. 42 CFR Part 2 prohibits the sharing of addiction treatment information by federally assisted treatment programs unless consent to do so has been obtained from the patient.

The Part 2 regulations were created more than 40 years ago to ensure the privacy of patients was protected and to ensure that patients would not face any legal or civil consequences from seeking treatment for substance abuse disorder.

NAAG argues that the regulations were created at a time when there was an “intense stigma” surrounding substance abuse disorder but says that the continued separation of substance abuse disorder from other diseases perpetuates that stigma. “The principle underlying these rules is that substance use disorder treatment is shameful and records of it should be withheld from other treatment providers in ways that we do not withhold records of treatment of other chronic diseases,” wrote NAAG.

NAAG wants substance abuse disorder to be recognized as the chronic disorder that it is, which would mean aligning the rules covering substance abuse treatment records with those of HIPAA. That would allow substance abuse treatment information to be shared along with other health information, provided protections are in place to keep that information private and confidential.

As it stands, Part 2 regulations are a barrier to treating opioid use disorder. Providers are used to complying with HIPAA, but the requirements of Part 2 can be intimidating. As such, many providers do not offer medicated-assisted treatment (MAT) for substance abuse disorder.

MAT providers are not required to comply with Part 2 requirements if they do not advertise their MAT services, but that means fewer people will take up those services. To effectively tackle the opioid epidemic in the United States, MAT services need to be promoted and should be easily accessible. Currently, many providers are keeping it a secret that they provide MAT programs to patients due to the restrictions of Part 2 regulations.

42 CFR Part 2 privacy regulations were updated in 2018, although the changes made were relatively minor. NAAG is not the only organization calling for more substantial changes and closer alignment between Part 2 and HIPAA regulations. A growing coalition of more than 40 national health care organizations support the changes and there is some support in the House and the Senate.

Reps. Markwayne Mullin (R-OK) and Earl Blumenauer (D-OR) introduced the Overdose Prevention and Patient Safety Act (OPPS Act) (H.R. 2062) and Sens. Joe Manchin (D-WV) and Shelley Moore Capito (RWV) introduced the Protecting Jessica Grubb’s Legacy Act (Legacy Act) (S. 1012) which both align HIPAA with Part 2. However, getting enough people to back the changes is likely to be a major challenge.

Author: Steve Alder has many years of experience as a journalist, and comes from a background in market research. He is a specialist on legal and regulatory affairs, and has several years of experience writing about HIPAA. Steve holds a B.Sc. from the University of Liverpool.