42 CFR Part 2: Confidentiality and Coordinated Care

by David Bucciferro, Senior Advisor. There is a lot of discussion taking place about Federal Regulation 42 CFR Part 2. These confidentiality regulations were initially promulgated in 1970 to implement protections required in the Comprehensive Alcoholism Prevention, Treatment and Rehabilitation Act (also known as the Hughes Act). Along with other very important pieces that helped transform care to individuals with alcohol and substance abuse disorders (SUD), the Hughes Act protected the confidentiality of patient records by prohibiting disclosure of an individual’s history of care for addiction treatment unless the patient signs a consent authorizing the release of the information for a specific reason and to a specific person. These protections were designed to encourage individuals struggling with alcoholism to seek care with the assurance that their treatment would be confidential.

Over the past 40 years, there have been many changes in the delivery of health care services, but 42 CFR Part 2 has not been updated to reflect these advances. The Affordable Care Act emphasizes preventive holistic care and wellness, such that individuals are being treated by their primary and specialty care providers in a coordinated way. Electronic technology and evidence-based practices facilitate improved outcomes by making available to treating practitioners (like primary care, urgent care, or other behavioral healthcare providers) important medical information that allows them to treat an individual in a holistic, evidenced-based manner. What is being questioned is whether and how these regulations should be updated to maintain patient confidentiality while achieving coordinated care when the regulations prohibit the routine release of addiction treatment information to physicians, inhibit inclusion of information in electronic medical records, and effectively isolate addiction treatment programs. At the heart of the discussion is what can be done to retain the privacy of individuals with SUD and still meet the spirit of the Affordable Care Act and best practice.

The solution is not as simple as repealing the HIPAA portion of the regulation on the grounds that it is protection enough. It is going to take a continued and focused open dialogue of leaders in the Behavioral Health field to achieve a balance between the competing interests. The solution will likely involve the development of the nation’s electronic information-sharing capabilities, and build on the privacy rules that exist today. One thing is certain: if we are to achieve the Triple Aim, we are going to have to come to agreement on how we can balance privacy of SUD information and coordinated care.

In the next few months I hope to be able to expand and report back progress that is being made to reach a fair and viable compromise. For now I suggest you read this article from the Wall Street Journal which spurred my interest in revisiting the current status of 42 CFR Part 2.

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Foothold Technology offers web-based software for human service providers that lifts the burden of documentation, providing the freedom to focus on their mission. More than 850 agencies nationwide count on Foothold’s AWARDS to manage their services, including Mental Health, Alcohol & Substance Abuse, Developmental Disabilities, Homeless & Housing, Employment & Training, Youth & Family, and more. Having originated from three agencies in 2000, AWARDS is a complete Electronic Health Record that also supports administrative activities, including facilities maintenance, human resources, scheduling and alerts, audit reports, and automated billing. AWARDS is fully interoperable with other federally certified systems and is the only record-keeping system that is certified as both a Behavioral Health EHR and a Homeless Management Information System (HMIS). For more information, visit www.footholdtechnology.com.