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Congress Urged To Align 42 CFR Part 2 With HIPAA Privacy Rule

The Partnership to Amend 42 CFR Part 2 is urging Congress to include the Overdose Prevention and Patient Safety Act (HR 6082), which would align 42 CFR Part 2 with the HIPAA Privacy Rule, in compromise opioid legislation that the House and Senate are considering.

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By Fred Donovan

- The Partnership to Amend 42 CFR Part 2 is urging Congress to include the Overdose Prevention and Patient Safety Act (HR 6082), which would align 42 CFR Part 2 with the HIPAA Privacy Rule, in compromise opioid legislation that the House and Senate are considering.*

*Editor's note: On Sept. 25, House and Senate conferees agreed to compromise opioid legislation that does not align 42 CFR Part 2 with the HIPAA Privacy Rule, but rather permits the disclosure of substance abuse treatment on a patient's medical record with the patient's consent.

HR 6082, which passed the House in June, would allow the sharing of information about a substance abuse patient without the patient’s consent for the purposes of treatment, payment, and operations, similar to what is allowed under the HIPAA Privacy Rule.

The House passed its comprehensive opioid crisis legislation (HR 6) in June, while the Senate just passed its legislation (S 2680) last week. The two chambers are working on compromise legislation thaty they hope to pass before the mid-term elections.

Currently, 42 CFR Part 2 prevents providers from sharing any information on a patient’s substance abuse history unless the patient gives explicit consent.

The Partnership to Amend 42 CFR Part 2 wants current law to be amended because, it argues, the stricter confidentiality requirements have a negative effect on medical treatment of individuals undergoing treatment for addiction.

The coalition includes more than 40 healthcare organizations representing clinicians, hospitals, biopharmaceuticals, the mental health community, pharmacists, electronic health record vendors, and payers. Its members include the American Hospital Association, American Health Information Management Association, American Psychiatric Association, College of Healthcare Information Management Executives, and major health insurers.

In a Sept. 18 letter to the Senate and House majority and minority leaders, the coalition argued that including HR 6082 in the final opioid epidemic legislation will “bolster the effectiveness of other key provisions in the package that promote coordinated care and expand access to treatment.”

“Alignment of Part 2 with HIPAA will allow appropriate access to patient information that is essential for providing safe, effective, whole-person care, while protecting this information with enhanced penalties for unlawful disclosure and use,” the letter explained.

“The Partnership strongly believes that the modernization of privacy regulations and medical records for persons with substance use disorders is a critical component for tackling the opioid crisis and will improve the overall coordination of care in the United States. As a result, we urge you to include H.R. 6082 in the final opioids agreement sent to the President’s desk,” it concluded.

Not everyone in healthcare favors changing 42 CFR Part 2. The American Medical Association (AMA) has come out against the effort to change current law.

The AMA argues that amending 42 CFR Part 2 would discourage addicted individuals from seeking treatment out of concern that their addiction treatment information will be shared without their permission, according to a letter sent to Congress and obtained by STAT.

“We do have concerns that [the proposal] could have unintended consequences and will not be as helpful in addressing the opioid abuse crisis as some people think,” an AMA spokesman wrote in an email to STAT.

Legal Action Center President Paul Samuels said in a statement quoted by STAT. “We applaud the AMA for opposing changes to Part 2, the law protecting confidentiality of substance use disorder patients, which would weaken essential patient privacy protections and likely lead to fewer people seeking life-saving care.”

Whether Congress decides to include HR 6082 in its compromise opioid epidemic legislation or not, HHS Secretary Alex Azar has indicated his agency intends to consider modifying implementation rules for 42 CFR Part 2.

Azar said that his agency soon plans to issue requests for information (RFIs) to get public comments about changing rules implementing 42 CRF Part 2 and the HIPAA Privacy Rule to make it easier for doctors, hospitals, and payers to coordinate in delivering value-based care and fighting the opioid addiction crisis.

“Current interpretations of the two privacy laws…are not just impeding value-based arrangements in healthcare. They can also get in the way of communities and families working together to combat our country’s crisis of opioid addiction,” Azar told an audience at the Heritage Foundation this summer. Azar did not specify what specific changes would be proposed in the RFIs.

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