What the agency got at the hearing was a mixed bag of arguments from participants, ranging from advocates urging the complete elimination of the special rule covering substance-abuse patients to those who testified that the rule's protections ought to be extended to cover all electronic patient information.
Mary Jean Mork, a program director at MaineHealth, Portland, said she supports total repeal of 42 CFR Part 2, the patient privacy rule being discussed, because it creates barriers to health information exchange and to implementing patient-centered medical homes.
“The intention of these efforts is to link the body and the mind,” Mork said, but general healthcare providers complain that behavioral health providers “rarely share information with them” because of the rule's strictures. If the rule can't be repealed, Mork said, her organization would like to see it modified to align with HIPAA, which authorizes the disclosure of patient information for treatment, payment and other healthcare operations without patient consent. The more stringent rule being discussed requires patient consent for disclosure each time records are shared.
Chicago lawyer Renee Popovits, principal attorney with Popovits & Robinson and co-chairwoman of the substance abuse legal work group of the Illinois Office of Health Information Technology, said patients should be able to provide blanket consent authorizing their behavioral health information to be shared with provider members of health information exchanges.
“Our patients deserve the option if they want to share information in HIEs,” said Popovits, who represents behavioral health providers. “It's their choice.”
But Catherine O'Neill, a senior vice president at the Legal Action Center, a New York and Washington, D.C.-based not-for-profit legal advocacy group that defends drug and alcohol abuse treatment centers and patients, deemed the HIPAA privacy rule as “insufficient,” adding “42 CFR's heightened protections are as critical today as they were 40 years ago.”
And while behavior healthcare should be integrated with regular healthcare, “unfortunately stigmatization and discrimination remain a real possibility” if drug and alcohol abuse treatment information is disclosed, O'Neill said.
Susie Mullens, a program director with First Choice Health Systems in Charleston, W. Va., a provider of technology services to behavioral health providers in the state, said the proper approach is not to weaken the rule, but to leverage health information technology to help providers comply with its requirements.
“We feel the technology is available and should be mandated,” said Mullens, the immediate past president of the West Virginia Association of Alcoholism and Drug Abuse Counselors. “It can be done,” Mullens said, even if it may require the redesign of some electronic health-record systems.
SAMHSA should help developers of health information technology systems by providing them with clear guidance on how to meet the requirements of 42 CFR Part 2, said Jeff Chang, project manager at PCE Systems, a Farmington Hills, Mich., developer of EHRs for behavioral health organizations.
The company has been implementing a consent management IT system with health information exchanges in Michigan to comply with 42 CFR, Chang said. “It would be helpful to provide clear specifications,” Chang said.
“Patient choice should really be what governs,” he said. If 42 CFR patients want to protect their records from disclosure, “We should be able to meet that need.” But if they want their drug or alcohol treatment information to be disclosed and shared throughout an HIE, “By all means they should have that choice,” Chang said.
More than 440 people logged into a SAMHSA Web conference to listen or participate in the morning session of the hearing, with another 115 registered to testify in person.
Follow Joseph Conn on Twitter: @MHJConn