Substance Use Providers Beware: New Patient Record Release RequirementsDecember 13, 2017 | Carol A. Hyde | Ashley S. Osadon |
Substance use treatment providers and rehabilitation centers should use caution when reviewing and approving written consents for the disclosure of substance use patient records, specifically consents authorizing disclosure to government agencies, as such requests frequently do not comply with new SAMHSA regulations.
On January 18, 2017, the Substance Abuse and Mental Health Services Administration (SAMHSA) published its Final Rule on the Confidentiality of Substance Use Disorder Patient Records found at 42 CFR Part 2. The Final Rule went into effect on March 21, 2017, and includes changes regarding the written request for substance use patient records by an entity without a treating provider relationship with the patient.
In cases where a government agency does not provide financial assistance to the Part 2 program, is not seeking such records in connection with an audit or evaluation authorized by law, and does not have a treating provider relationship with the patient whose records they are seeking, the government agency is required under the recent changes to 42 CFR § 2.31(a)(4)(i) to include “the name(s) of the individual(s) to whom a disclosure is to be made.”
Government agencies requesting such records typically include, but are not limited to, the New York State Office of Alcoholism and Substance Abuse Services (OASAS), the Department of Motor Vehicles, and the New York State Office of Court Administration, when such agencies do not request the records in connection with their payer status or for auditing and evaluation purposes where otherwise permitted under law.
Currently, government agency patient consent forms often contain merely the title of the individual to whom the disclosure is to be made or only the name of the agency, and not the full name of the individual(s) to whom the disclosure will be made as required. The recent SAMHSA changes to 42 CFR Part 2 eliminate the previous option “of designating only a title of an individual.” (81 Fed. Reg. 6988). An example of a noncompliant consent form currently in use is OASAS’s Impaired Driver System (IDS) form, IDMS-3 (02/17).
The new SAMHSA regulations overlook the need for government agencies to obtain substance use patient records under certain circumstances, and they complicate the operations of Part 2 providers by compelling them to deny access to government agencies for not complying with the regulation’s ‘to whom’ requirements even when the disclosure is authorized by, and beneficial to, the patient.
Both sides to this unfortunate situation – the government agencies and substance use disorder treatment providers and rehabilitation centers – would benefit from a regulatory amendment to allow either a designation of the title of the individual to whom the records will be disclosed or a general designation of the name of the government agency.
Until 42 CFR Part 2 is amended, providers should use caution when reviewing requests for disclosure to government agencies to ensure that substance use patient records are disclosed only pursuant to a valid written consent.