Special Restrictions Apply To Substance and Alcohol Rehabilitation Patient Records; Even In A Pandemic

May 5, 2020

The Office of Civil Rights’ “Notification of Enforcement Discretion” regarding COVID- 19 and remote telehealth communications do not apply to information protected under 42 CFR Part 2.  These Part 2 regulations protect the confidentiality of certain substance and alcohol rehabilitation records and generally provide more stringent confidentiality protections than what applies to general medical records under HIPAA.

However, the Substance Abuse and Mental Health Services Administration (SAMHSA), which has jurisdiction over this area, has issued its own guidance on the impact of the COVID-19 pandemic and the obligations to assure confidentiality of substance and alcohol rehabilitation records under 42 CFR Part 2.  There have been no general waivers issued permitting a more liberalized approach to the normally very strict prohibition against disclosure of this specially treated information.

Providers must continue to comply with the Part 2 restrictions during the pandemic.  However, there is one special exception under Part 2 permitting limited release of information in a “medical emergency.”

SAMHSA acknowledges that many substance abuse offices are closed due to compliance with stay-at-home orders, social distancing requirements, or other limitations caused by the virus.  As a result, SAMHSA acknowledges a need to increase the level of services provided using telehealth technologies.  SAMHSA further acknowledges these circumstances might hamper providers from being able to obtain written patient consent for disclosure of substance use disorder records.

SAMHSA does not offer any type of waiver of Part 2 requirements to make it easier for providers to assure they are in compliance.  SAMHSA merely points out that Part 2 contains an existing exception permitting disclosure to the extent a medical emergency exists in the opinion of the health care provider.  The Part 2 medical emergency exception permits patient identifying information be disclosed by a Part 2 program or other lawful holder to medical personnel, without patient consent, to the extent necessary to meet a bona fide medical emergency in which the patient’s prior informed consent cannot be obtained.

This exception only permits disclosure to “medical personnel.”  The disclosure must be for the purpose of meeting a bona fide medical emergency determined in the opinion of the health care provider.  Additionally, the emergency exception is only available when the informed consent cannot be obtained from the patient.  SAMHSA puts the burden on the back of the provider to determine whether a medical emergency exists.  The provider would also have the obligation to document the patient record with the emergency justification for releasing Part 2 information without patient consent.  This includes documentation to support why the patient was not available to provide written consent.

As in all circumstances, special care must be taken with Part 2 protected patient information even in the midst of a pandemic.  There may be certain limited cases where the medical emergency exception can be used to permit a disclosure without patient consent.  It is important to keep in mind that Part 2 never requires you to disclose Part 2 protected information.  It pays to err on the side of not disclosing when it comes to substance and alcohol rehabilitation records.

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