Proposed Revisions to the SAMHSA Regulations Would Permit Non-Part 2 Providers to Reference Part 2 Treatment in Patient Records
By John H. Fisher II
September 23, 2019
Our representation of behavioral health and substance abuse programs has required us to stay in tune to issues involving special confidentiality of patient records under 42 CFR Part 2, also known as the SAMHSA regulations. The SAMHSA regulations were completely recast in two sets of regulatory revisions that were issued in 2017 and 2018.
One of the main changes that came about through recent regulatory enactments involves application of the extremely strict confidentiality provisions to individuals who receive information about Part 2 program patients from a Part 2 program. These revisions impact the permissibility of communications between a Part 2 program and a treating provider outside of the Part 2 program. Communications between “inside” and “outside” providers can be extremely critical to a patient’s care, particularly in cases where the patient has a dual diagnosis of substance abuse along with a mental health issue. An unintended result of the recent regulatory revision has been a chilling effect on communication between “inside” and “outside” providers due to fear by the outside provider that the communication will subject the patient records of the outside provider to the strict requirements of Part 2.
Toward the end of August 2019, SAMHSA issued additional proposed regulatory revisions. One proposed revision addresses these communications between Part 2 providers and treatment providers who are outside of the Part 2 program. The proposed regulatory revisions are reflective of requirements that apply to these communications in addition to proposing new regulatory requirements intended to solve unintended chilling of communications between Part 2 and behavioral health providers.
The first issue worth mentioning is that, unlike HIPAA, sharing information about Part 2 treatment with treating providers outside of the Part 2 program requires patient consent. Patient consent must meet the exacting consent requirements contained in Part 2. A consent is even required to permit information sharing within the walls of an integrated provider setting. For example, some mental health institutions operate a variety of behavioral health programs and services in addition to a Part 2 substance and alcohol recovery program. Program providers routinely communicate with behavioral health providers about patient care, particularly in the case of patients who have a dual diagnosis of substance abuse along with a mental health diagnosis. Even within the same entity, the communication of Part 2 protected information requires the written consent of the patient.
Secondly, much of the communication between “inside” and “outside” providers is done by oral consultation. The non-Part 2 provider will often note the communications with the Part 2 program in the patient’s behavioral health record. After the new regulations were issued in 2017 and 2018, non-Part 2 providers became concerned that noting any information about Part 2 treatment in the behavioral health record would make the entire behavioral health record subject to the restrictions of Part 2. The end result was a chilling of communication and collaboration between providers, even in cases where the patient clearly gave written consent for those communications to occur.
The new proposed regulations attempt to cure this situation by permitting the non-Part 2 provider to note the oral communication with the Part 2 program in the patient’s behavioral health record without subjecting the entire record to Part 2. Those communications must still be confined to situations in which a valid patient consent has been procured that permits the Part 2 program to communicate with the behavioral health treating provider.
The proposed regulations make it clear the door is not being opened to permit the free flow of information to the non-Part 2 provider without subjecting the provider to Part 2. If formal Part 2 records are received by an outside provider, those records must be segregated from the patient’s behavioral health records. If proper segmentation does not take place, the entire behavioral health record becomes subject to the very strict provisions of Part 2. This has a net impact of impeding access to the records to behavioral health staff that do not have the need to access Part 2 protected information. Any improper access by behavioral health staff would result in a violation of Part 2.
In the end, what the new regulatory proposal does is exempt notations of limited oral communications between the Part 2 provider and the outside provider in the non-Part 2 record from being considered part of the Part 2 record.
Some providers who already communicate with Part 2 programs about their patients may be surprised to learn there is even an issue with these communications. The regulatory changes occurred relatively recently. Communication regarding the implications may not have traveled outside of the Part 2 programs to primary care or behavioral health providers who may have been impacted by the changes in regulation. If that is the case, now is a good time to take note of the 2017 and 2018 requirements and adjust your policies and practices accordingly. It is quite possible the proposed regulations will be enacted, but at this point that is not a certainty. Regardless, providers should take note of the segmentation requirements and determine what changes, if any, are required to assure compliance. Failure to properly segment Part 2 records can present substantial risk to providers who practice outside of the auspices of a Part 2 program yet have treatment relationships with Part 2 patients.
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