Privacy vs Appropriate Care for Substance Disorders

Privacy vs Appropriate Care for Substance Disorders

A subcommittee of the House Energy and Commerce Committee recently heard arguments, both pro and con, about proposed new legislation called, "The Overdose Prevention and Patient Safety Act." The proposed act, co-authored by Rep. Earl Blumenauer (D-Ore.) and Rep. Markwayne Mullin (R-Okla), relaxes HIPAA privacy provisions for people seeking treatment for substance use disorders.

The section of HIPAA commonly known in the health care industry simply as "42 CFR Part 2" concerns a federal statute called "Confidentiality of Substance Use Disorder Patient Records, 42 Code of Federal Regulations (CFR) 2." It was formerly known as "Confidentiality of Alcohol and Drug Abuse Patient Records...etc." Since the terms "drug abuse" and "alcohol abuse" have fallen into disfavor they've been replaced in official documents with "substance use disorder."

"This law generally requires a federally assisted substance use program to have a patient's consent before releasing information to others," said the Substance Abuse and Mental Health Services Administration (SAMHSA) about the original statute. "It encourages people to seek treatment and reassures patient privacy."

SAMHSA has been working on proposed changes to 42 CFR Part 2 over the last two years, and posted finalized changes in January, 2018. Its new rules,

allow patients to provide a "general disclosure" for substance abuse information, rather than limiting authorization to a specific provider.

The proposed new act from Blumenauer and Mullin further broaden the circumstances under which a patient's substance use disorder could or would be made known.

Confidentiality vs patient safety

Because reports of relapses, illnesses and even deaths when patients don't or can't reveal their dependencies and addictions to physicians have raised concerns, the committee's discussions centered on the pros and cons of strict confidentiality.

For example, when physicians are prevented from learning about a patient's substance abuse history, it can lead to inappropriate care such as prescribing opioid painkillers to patients battling opioid dependence. Many physicians believe the regulations should be changed for the sake of patient safety.

The committee heard the story of such a tragic death from Dustin McKee, the director of policy for the National Alliance on Mental Illness of Ohio. McKee told the committee that his brother's death from an opioid overdose could have been prevented if his medical history of substance abuse had been available.

On the other hand, advocates for maintaining strict privacy say patients risk the stigma that occurs when one's drug and alcohol problems are revealed. They see that risk as greater than the risks of inappropriate and dangerous treatment.

Blumenauer told the committee that the current Part 2 rules have created a "life-threatening firewall" that separates a patient's addiction treatment records from the rest of the patient's medical records. Part 2 requires a patient's consent for sharing such information. His proposed act would remove the consent requirement.

"Doctors can't treat the whole patient with half a medical record," Blumenauer said.

The argument continues

Rep. Frank Pallone (D-N.J.), said disclosure could cause substance abuse patients to risk serious consequences, such as loss of child custody, a job, housing, or legal consequence.

Faces and Voices of Recovery Executive Director Patty McCarthy said that Part 2,

"provides safeguards for patients against potentially disastrous results of unauthorized disclosure." In her written submission she argued that the proposed changes are "the antithesis of the principle of patient centered, integrated care." She said the changes are fueled not by consideration of patient welfare but by "the business interests of hospitals, insurers, treatment agencies and software vendors."

When subcommittee members suggested that mental health disorders and sexually transmitted diseases such as HIV are not given any special privacy, McCarthy countered that those diseases do not have the potential for criminal and legal consequences that substance use disorders can have.

Rep. Anna Eshoo (D-Calif.) said there is no tidy answer to the issue of consent. From personal experience with a family member with serious mental health problems, she said some people are completely unable to give consent.

And Jeremiah Gardner, a public affairs and advocacy manager at the Hazelden Betty Ford Foundation in Center City, Minnesota, said he supported the Act and disagreed that privacy concerns prevent people with addiction issues from seeking treatment. He told MedPage Today that when a person is ready to ask for help, an expectation of privacy isn't their first priority.

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