There’s little specific to substance use disorders (SUDs) in the “Helping Families in Mental Health Crisis Act of 2015,” a bill from 2013 reintroduced June 4 by Rep. Tim Murphy (R-Pennsylvania) (see ADAW, Dec. 16, 2013). Like its predecessor, the bill seeks to encourage outpatient commitment, which mental health patient advocates oppose, but at the same time funds mental health programs, especially those based in psychiatry and psychology and medications. But there is one item affecting patients with SUDs: a provision that specifically would weaken 42 CFR Part 2, the confidentiality regulation banning the release of information on patients treated for SUDs. The bill wouldn’t change 42 CFR Part 2 itself, but rather make certain information inapplicable to it. And it would be retroactive — people who thought they had been protected by 42 CFR Part 2 would not be protected anymore.

Like its predecessor in 2013, the bill eliminates the Substance Abuse and Mental Health Services Administration (SAMHSA) and adds a bureaucracy within the Department of Health and Human Services at the assistant secretary level.

The bill focuses primarily on mental health — except for the provision removing the privacy protections for people in treatment for SUDs, by saying that SUD information doesn’t apply to 42 CFR Part 2 if treatment took place in an integrated health system.

The bill amends section 543(e) of the Public Health Service Act (42 U.S.C. 290dd–2(e)) by inserting that information may be shared “within accountable care organizations described in section 1899 of the Social Security Act (42 U.S.C. 1395jjj), health information exchanges (as defined for purposes of section 3013), health homes (as defined in section 1945(h)(3) of such Act 42 U.S.C. 1396w–4(h)(3)), or other integrated care arrangements (in existence before, on, or after the date of the enactment of this paragraph) involving the interchange of electronic health records (as defined in section 13400 of division A of Public Law 111–5) (42 U.S.C. 17921(5)) containing information described in subsection (a) for purposes of attaining interoperability, improving care coordination, reducing health care costs, and securing or providing patient safety.’’

Retroactivity

Not only does the bill change the meaning of 42 CFR Part 2, but it would change it retroactively for all “integrated care arrangements,” including those “in existence before” the date of enactment. That means that people in treatment decades years ago, who did not consent to the release of their information, might not be protected. It also could discourage anyone in an integrated system from seeking treatment for an SUD.

This is of great concern to H. Westley Clark, M.D., until last fall director of SAMHSA’s Center for Substance Abuse Treatment, which promulgates 42 CFR Part 2.

Clark calls the provision, which makes SUD information inapplicable to 42 CFR Part 2 if it occurred in an integrated health system, an “all-encompassing privacy buster.” The provision “nullifies the understanding that past patients had when they entered treatment, even if that treatment was 20 years ago,” said Clark, now a professor of public health at Santa Clara University in California. “People in recovery will be stripped of their autonomy to decide whether they want to share their past history.”

The argument for the change is that releasing information is “for their own good,” said Clark, adding that he hasn’t seen any studies that indicate that this release of information “for their own good” was warranted. “People with SUDs are an inconvenient afterthought in this bill,” said Clark. They are “given nothing, but forced to give up the most private of rights — personal autonomy.”

Harm to patients

Clark thinks people will deny having a problem with alcohol or drugs, “once it becomes known that anything you say will be held against you.” He may be wrong, he admitted. “But I know that once logic prevails, once the discrimination ensues, higher-functioning users will shy away from admitting the truth,” he said. “The integrated system cannot protect patients’ confidentiality or privacy. And, there is zero discussion about the harm to patients when privacy is breached.”

There are also questions about SUD information and the criminal justice system. HIPAA already allows the criminal justice community access to medical records with minimal justification, said Clark. The non-applicability clause about 42 CFR Part 2 in the bill could “open the floodgates to criminal prosecution.”

The original intent of 42 CFR Part 2 was to keep law enforcement from literally following patients into treatment programs — in particular, opioid treatment programs, which is what happened in New York City.

“I just want people to get treatment that works without fear of retribution,” said Clark.

Sen. Scott “Chris” Murphy (D-Connecticut) is interested in a companion bill. If this happens, the bill from the House side may go further than it did two years ago, before it included the confidentiality change.