EXECUTIVE SUMMARY

A bill in Congress would allow more sharing of information about substance use disorders. It is intended to address some current restrictions that can interfere with care.

• The new law would incorporate some HIPAA elements.

• There would still be tight restrictions on data sharing.

• Misuse of substance abuse information could be prosecuted criminally.


A bill currently making its way through Congress could address current problems with how information on mental health and substance use disorders (SUDs) is shared among healthcare providers.

The proposed law still would place tight restrictions on the data and prohibit discriminations against patients with these conditions, says Gerald E. (Jud) DeLoss, JD, an attorney and officer at Greensfelder, Hemker & Gale in Chicago.

DeLoss focuses his law practice on mental health and SUD. He testified about the bill as the subject matter legal expert before the U.S. House Energy and Commerce Health Subcommittee. H.R. 5795 would allow the disclosure of patient information related to SUD with healthcare providers, health plans, and healthcare clearinghouses for treatment, payment, and healthcare operations in accordance with HIPAA. (The bill is available online at: https://bit.ly/2Jh9bHZ.)

H.R. 5795 is designed to allow sharing of information about SUD and other treatment programs covered by HIPAA, DeLoss says.

“The ability for healthcare providers to see a patient’s entire medical record is critical when opioids are prescribed or when contraindicated drugs could cause serious injury or death to a patient,” DeLoss says.

Exception to Consent-driven Process

The bill would modify 2 CFR Part 2, a federal law governing confidentiality. The law imposes stringent protections on disclosing any information identifying a patient as having an SUD. The law restricts the disclosure of this information even in situations in which many would argue it is to the patient’s benefit.

“This bill would create an exception to what is usually a consent-driven process,” DeLoss says. “Each and every time in the past, the disclosure of this information has required consent, so this bill would create an exception similar to HIPAA, which says no consent or authorization is required to share health information for treatment, payment, or healthcare operations.”

The bill also would eliminate the need to obtain consent each time the disclosed information is shared with another healthcare organization.

However, the exception specified in the bill is very narrow, DeLoss says.

“It’s still a matter of segmenting the data, flagging the data, and making sure it is not shared with anyone except those narrowly defined parties,” he says. “It’s not opening it up and fully aligning with HIPAA, which is the goal of many who think we should break down the silos and the walls separating healthcare systems to allow for fully integrated care.”

The bill imposes stiff penalties, including criminal prosecution, for improper disclosure of SUD information. There also is a strict prohibition against using the information in any civil or criminal procedure, or any law enforcement efforts.

SUD patients also would be protected from discrimination by healthcare professionals with access to the information, as well as non-healthcare-related protections related to housing, employment, and other issues.

“There are some broad anti-discrimination protections that will be of great interest, and possibly concern, to the medical field because this would apply when they are admitting a patient, for instance. They could not discriminate based on the patient, based on this SUD-related condition,” DeLoss says. “There will need to be education for staff on how to comply with these restrictions and processes for patients who feel they are the subject of discrimination.”

SOURCE

• Gerald E. (Jud) DeLoss, JD, Greensfelder, Hemker & Gale, Chicago. Phone: (312) 345-5012. Email: gdeloss@greensfelder.com.