Some providers have come out against a recent HHS proposal that would expand law enforcement's access to patient records that involve addiction treatment information, worrying it could deter people from seeking care.
The proposal from the Substance Abuse and Mental Health Services Administration would allow courts to authorize disclosure of these patient records when investigating certain crimes, including alleged drug trafficking by a provider. The proposed rule seeks to change a section of complex privacy regulations around addiction treatment, known as CFR Part 2.
According to the American Medical Association, many physicians and patient groups are worried that the change will have negative repercussions.
While this proposed rule is a technical change, it is one that has the ability to significantly impact how law enforcement interacts with physicians and their patients," the AMA wrote in a letter.
In its proposed rule, SAMHSA said the change to the law enforcement regulation aims to correct an error in a final rule it published in 2017, which had "erroneously added" a phrase that suggested records from Part 2 programs would be shared with law enforcement only in cases where a crime was "allegedly committed by the patient."
The revision would offer "enhanced ability" to address opioid-related crime,according to the Northeast Ohio Hospital Opioid Consortium, which includes providers like the Cleveland Clinic, MetroHealth System and University Hospitals.
"The opioid consortium member organizations understand the importance of federal enforcement efforts to addressing the crisis," the group's letter said.
But the Grayken Center for Addiction at Boston Medical Center and the American College of Emergency Physicians were among dozens of providers and patients who opposed the change.
Although CFR Part 2 prohibits law enforcement from using patient records related to substance abuse disorder in criminal prosecution against the patient, providers raised concerns that loosening privacy regulations related to law enforcement could still discourage people from seeking care.
"Part 2 was created to encourage people to seek care without fear of legal repercussions or stigma," the Grayken Center for Addiction wrote. "A change of this nature can have an unintended consequence of deterring people in need of treatment from seeking care out of fear of law enforcement involvement."
Critics also raised concerns over SAMHSA's inclusion of drug trafficking as an example of a crime that would be covered by the rule. In the past, crimes that would warrant disclosure of a patient's record were limited to the patient's alleged involvement in violent crimes, such as homicide or child abuse, according to Dr. H. Westley Clark, former director of SAMHSA's Center for Substance Abuse Treatment.
"Since dependence on illegal drugs almost by definition involves some form of illegal drug activity, which could easily be classified as drug trafficking, the criminalization of substance use disorders is not the answer to this public health crisis," wrote Clark, who now serves as the dean's executive professor of public health at Santa Clara (Calif.) University.
The larger revisions to CFR Part 2 proposed by SAMHSA in August would also make substance use disorder and treatment records no longer subject to extra privacy laws that pre-date HIPAA. That would allow primary-care physicians to note patients' addiction treatment history in their regular patient record, among other reforms.
Public comment for that proposed rule, which is meant to harmonize behavioral and primary-care health treatments, closes Oct. 25.
SAMHSA posted both CFR Part 2 proposed changes to the Federal Register on Aug. 26. At press time, the agency had not responded to a request for comment on how it had determined the length of the comment periods for the two proposals.