Is Privacy Protection For Addiction Treatment Still Essential?

By Kelly Burch 04/25/17

Some experts believe that a federal regulation designed to protect patients with stigmatized illnesses is no longer useful.

A doctor passing a clipboard with paperwork to a patient.

As substance use disorder becomes more widely accepted as a medical issue, there is debate over whether certain privacy protections mandated by federal law are outdated and a hindrance to treatment—or whether they're still a necessary part of protecting the privacy of people who suffer from these illnesses. 

Two recent posts on the Health Affairs blog takes on the debate over 42 CFR Part 2.

The 42 Code of Federal Regulations (CFR) Part 2 was enacted in 1987, long before HIPAA was established to protect health care privacy. The rule adds an extra layer of protection to a patient's history regarding drug and alcohol treatment—motivated by the understanding that these illnesses receive a disproportionate amount of stigma.

But despite its good intentions, 42 CFR Part 2 makes sharing health care information very complicated, according to some in the addiction and recovery fields. 

“This confidentiality becomes a stumbling block because 42 CFR part 2 requires addiction treatment providers to obtain written consent from patients in order to share any information with non-addiction clinicians—the only exception being for ‘true emergencies,’” wrote Dr. Sarah Wakeman, medical director for the Mass General Hospital Substance Use Disorder Initiative, and Dr. Peter Friedmann, the chief research officer at Baystate Health.

“Designed to protect stigmatized patients, ironically this added layer of protection now creates virtual care silos, hinders good medical care, and perpetuates stigma in the contemporary era of electronic health records (EHRs), health information exchanges, behavioral health integration, and HIPAA privacy protections,” they wrote on the blog.

The two argue that 42 CFR Part 2 makes it difficult to integrate addiction treatment into medical care. 

“42 CFR Part 2 has outlived its usefulness,” they say. “If we truly believe addiction is a disease like any other, the time has come to treat it as such.”

However, others disagree, saying that the regulations provide protections that are still important today. 

“Although scientific advances over the past decades have shown that addiction is a chronic medical illness, the view that it is a ‘moral failing’ remains prevalent and the associated stigma is persistent,” wrote Karla Lopez and Deborah Reid, attorneys at the Legal Action Center, a non-profit law and policy organization that fights discrimination against people with addiction, HIV/AIDS, and criminal records.

“As attorneys at a non-profit legal organization, we not only routinely communicate with substance use disorder advocacy and treatment organizations, but we see clients who have experienced significant negative consequences as a result of prejudice and ignorance,” they wrote in another blog, highlighting a number of examples. 

They continued, “Health care providers—even well-meaning ones—who do not acknowledge that disclosure of a patient’s substance use history can have catastrophic consequences for that patient are not serving their patient’s best interests or adhering to the principle of ‘first, do no harm.’”

HIPAA, the better-known health care privacy protection legislation, does not provide the same protections, Lopez and Reid argue, because it allows for too many disclosures. 

“These widespread disclosures significantly increase the likelihood that such information will be disclosed to others in a way that could be harmful to the patient, such as to insurers, employers, and law enforcement,” they wrote.

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Kelly Burch writes about addiction and mental health issues, particularly as they affect families. Follow her on TwitterFacebook, and LinkedIn.