National Association of Attorneys General Urges Congress to Align Part 2 with HIPAA

The National Association of Attorneys General (NAAG) has written to Congress demanding changes be made to the “cumbersome & out-of-date” Confidentiality of Substance Use Disorder Patient Records regulations, commonly referred to as 42 CFR Part 2.

NAAG wants the restrictions on Part 2 uses and disclosures to be eased and brought inline with the HIPAA Privacy Rule. Currently, substance abuse treatment records can only be shared with other healthcare providers if consent is obtained from the patient. If that restriction is removed, those treatment records can be shared with other authorized individuals for purposes related to treatment, payment, or healthcare operations, as is the case with other forms of PHI.

In the letter to both the House and Senate, NAAG explained that the Part 2 regulations were created more than 40 years ago at a time when there was an ‘intense stigma’ surrounding substance abuse disorder. It was essential at that time to make sure that individuals suffering from the condition could seek and receive treatment without fear of civil or legal repercussions.

It is still important to protect the privacy of patients by ensuring all of their health information remains private and confidential, but it is also important to make substance abuse records more widely accessible, argues NAAG, as part of efforts to tackle the opioid crisis in the United States.

Treatment disorder information can inform treatment decisions and by making the sharing of that information easier, it will be easier to ensure that patients receive the medical care they need.

NAAG explains in the letter that Part 2 is a barrier to patient care and is hampering efforts to tackle the opioid epidemic. For many providers, complying with HIPAA is complicated enough. Having to also comply with Part 2 regulations puts many providers off offering medicated-assisted treatment (MAT) programs for substance abuse disorder. When MAT services are offered, providers can get around compliance with Part 2 requirements by not advertising those programs. To help tackle the opioid epidemic, access to MAT programs should be improved and those programs should be promoted. Aligning Part 2 with HIPAA will solve the problem.

29 State Attorneys General signed the letter calling for closer alignment between Part 2 and HIPAA.  Several industry associations have also called for changes to Part 2 to bring it in line with HIPAA. While support is growing, it remains to be seen whether sufficient votes can be found in the House and Senate supporting the Part 2 changes.

A significant number of Reps. and Sens. oppose the proposed changes and believe they could result in a reduction in privacy protections and could discourage individuals with substance abuse disorder from seeking treatment.