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s the national opioid epidemic continues to escalate, policymakers are increasingly desperate for solutions to stem the tide of devastation. Those of us who have been working to fight for decades to combat addiction in America — through the crack epidemic, the meth epidemic, and the previous heroin epidemic — have a message for them: Listen to the voices of patients, families, and recovery advocates to understand what to do and how to avoid repeating the mistakes of the past or creating more damage.

We also have a message for patients, families, and recovery advocates: Make your voices heard now as Congress considers the Overdose Prevention and Patient Safety Act. This legislation would jeopardize the confidentiality of substance use treatment and discourage patients from seeking the care they need to get well and stay well — and stay alive.

At issue is a section of the Code of Federal Regulations known as 42 CFR Part 2 (or just “Part 2” for short). It was established more than 40 years ago in the middle of the nation’s previous opioid epidemic, when policymakers realized that people were not seeking treatment because they were afraid that doing so could lead to their being arrested, losing custody of their children, or other negative consequences.

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Part 2 created an added layer of confidentiality protection for individuals receiving treatment in addiction-specific programs, such as residential addiction treatment programs, methadone clinics, and detoxification units within hospitals. Treatment programs covered by Part 2 are, for example, prohibited from giving a patient’s medical records without a special court order to law enforcement or to people suing the patient. These programs also cannot share patient information with payers or other providers without the patient’s written consent.

Unlike other diseases, drug addiction is criminalized in our society. It is not just stigma that keeps people in recovery from being open about their history of alcohol and/or drug addiction. It is the very real risk that disclosure could result in loss of employment, loss of housing, loss of child custody, loss of benefits, discrimination by medical professionals, and even arrest, prosecution, and incarceration. Part 2 is often the only shield between individuals in recovery and the many forms of discrimination and prejudice that could destroy their lives.

That is why more than 100 organizations representing millions of people in recovery from addiction have joined forces to oppose weakening the core protections provided under 42 CFR Part 2. Such a change would have the chilling effect of discouraging patients with substance use disorders from seeking the care they need to get well and stay well.

Unfortunately, Part 2 has become a convenient scapegoat for miscommunication or poor treatment of patients with substance use disorders in general medical settings. One reason for this is the widespread lack of understanding about when and where Part 2’s protections apply. There is a misperception that these rules contribute to the opioid crisis by preventing the sharing of health information in medical settings. That is inaccurate. Part 2 applies only to health care facilities and clinicians whose primary purpose is to provide substance use disorder care. It doesn’t apply in emergency departments, surgical units, primary care offices, and the like. In those settings, the Health Insurance Portability and Accountability Act, the standard patient privacy law, applies.

So when a patient comes to an emergency department after having overdosed on heroin or another opioid, Part 2 does not stand in the way of doctors contacting the family. When a patient comes in for surgery and the doctor does not ask about or document the patient’s history of substance use, Part 2 is not the problem. HIPAA is already the law of the land in these scenarios, and relaxing Part 2 will not improve communication or patient care.

What relaxing or dismantling Part 2 will do is make the records of patients and their families engaged in addiction treatment more vulnerable to being misused in ways that harm the patient. It means that patients in recovery from opioid addiction who are taking medications such as methadone, buprenorphine, or injectable naltrexone would lose the added protection that Part 2 currently provides. It means that family members who are participating in a loved one’s treatment risk having details of family therapy shared without their consent.

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In the midst of this devastating national opioid epidemic, we cannot afford to have patients and their families fear seeking treatment because they don’t have faith that their confidentiality will be protected. Instead of improving care, the proposed changes to 42 CFR Part 2 could discourage patients from seeking treatment while also exposing them to potential discrimination and harm, as well as magnifying their vulnerability to data breaches, an increasingly common occurrence in today’s connected world.

When it comes to health care policy, decision-makers should follow the standard “First, do no harm” rule. Loosening privacy protections for people in treatment for a substance use disorder or in recovery from one would undermine efforts to solve the nation’s opioid crisis. And the harm stemming from it would be immeasurable and immediate.

Paul N. Samuels is the president and director of the Legal Action Center, a national nonprofit legal and advocacy organization that works to protect the rights of people with addiction. Patty McCarthy Metcalf is executive director of Faces & Voices of Recovery, the nation’s leading recovery advocacy organization.

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  • So now we have all of these Employee Assistance Programs for employee addicts to be referred to. The employee goes to drug rehab and all I get from the EAP is a one line note saying “employee is able to return to work under XYZ conditions”. I’m supposed to put 100% faith in a treatment report that I’m not allowed to see?

    Fuhgettaboutit.

    If there are 50 ways to leave your lover there are 100 ways to fire an employee and I can find one of them without ever mentioning one syllable about the employee’s addiction.

  • Clearly a situation where HIPAA must be waived. Simple example. Pain meds mask underlying symptoms of acute appendicitis. Patient high on opiates has attack of acute appendicitis or an ectopic tubal pregnancy but doesn’t feel the pain. The appendix or the TP ruptures and causes massive peritonitis and sepsis. True medical emergency. Patient must disclose addiction to ER docs to help them figure out what’s going on. OR, you can decide not to provide this vital information, then it becomes your choice to die from septic shock, get fitted for a casket before your 21st birthday and carry your privileged information to your grave.

    • Did you not even bother reading this article? There are several problems with your hypothetical scenario:

      1) Part 2 doesn’t apply to ERs;
      2.) Part 2 has nothing to do with self-disclosure;
      3.) Even self-disclosure would not necessarily lead the ER staff to know about the underlying symptoms of appendicitis;
      4.) Eliminating Part 2 wouldn’t inform the facility any faster of the patient’s medical condition (they already do a drug screen for virtually every admission now);
      5.) Appeals to emotion, like your closing salvo about being “fitted for a casket,” are not actually arguments.

  • A real problem related to CFR42–don’t dismiss it
    A patient on methadone comes to the ER for pneumonia and is hospitalized. They decide that they do not wish to disclose their addiction and treatment for it. The physicians have access to the medical record so they can avoid dangerous medication interactions, see comorbidities that help with diagnosis and treatment decisions (except addiction). It turns out that because the addiction records are in a separate facility and administrative structure clinicians caring for the patient do not know about it. This is dangerous for the patient (medication interaction, misinterpretation of symptoms, incorrect diagnoses, incorrect treatments based on inadequate information). And while of course the patient should have control over their records, such control in this example can be very harmful. It is NOT solved by asking for written permission documentation for at least two reasons. One is that the permission is very specific and doesn’t easily apply to most medical care circumstances. The other is that it is an additional special procedure clinicians must undertake, and they only know to do so if they think of it or if there is a reason. If they are unaware, the records wont be requested.

    I understand the very real harms of stigma and discrimination discussed in the article. They are very serious. But it is not true that this level of confidentiality protection has no effect on safe medical care. Rather than be “for” or “against” special protections, I believe the conversation needs to move to ways to reduce discrimination while having records available for safe care. Exactly what that looks like is not clear but we should have that conversation and work towards it.

    • “I believe the conversation needs to move to ways to reduce discrimination while having records available for safe care. Exactly what that looks like is not clear but we should have that conversation and work towards it.”

      You don’t know what that looks like because there is no such ideal legislation. Legislation can’t possibly cover all situations, and there will always be some form of trade off (or risk-benefit analysis, if you will). As it stands, while your scenario is possible, there are multiple ways to screen for and account for it — including good triage and training. Eliminating Part 2, as the article points out, has the potential to be MUCH more devastating by preventing untold people from ever seeking treatment.

    • Wilbur you are right that legislation can not cover all situations. But it is not correct that triage and training will solve it. There are many circumstances in which current legislation in fact makes it unsafe for patients now. Further, it perpetuates the separation of addiction care from the rest of health care. Yes the opinion stated in the article is that it would be worse to change the legislation. Stating it in the article does not make it true. We can do better. It isn’t simple but just having black and white arguments about CFR42-2 is not helping patients get better care.

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