Health Law Highlights

Confidentiality of Substance Use Disorder Patient Records: What to Know About Updates to Part 2

From Orrick, Herrington & Sutcliffe LLP, by Thora Johnson, Kyle Kessler, Cosmas Robless:

The U.S. Department of Health & Human Services (HHS) has updated the Confidentiality of Substance Use Disorder Patient Records regulations (Part 2) to align with HIPAA and HITECH, aiming to improve care coordination while protecting patient privacy. Notably, patient consent for disclosure of SUD treatment records has been simplified, allowing a single consent for all future uses and disclosures related to treatment, payment, and health care operations.

The Rule permits redisclosure of SUD records by HIPAA-covered entities without additional patient consent, promoting coordinated care. The Rule also introduces a definition for SUD counseling notes, mirroring the HIPAA protections for psychotherapy notes, which require separate written consent for use or disclosure.

The Rule establishes two new patient rights: the right to receive an accounting of any disclosures of their SUD records in the three years prior to their request, and the right to request restrictions on disclosures of their records for treatment, payment, and health care operations.

The Rule expands patient privacy in legal proceedings, extending the prohibition of the use and disclosure of SUD records to all criminal, civil, administrative, and legislative proceedings against a patient. It also authorizes civil penalties, in addition to criminal ones, for Part 2 violations, aligning with the value of civil penalties under HIPAA.

The Rule applies the same requirements as the HIPAA Breach Notification Rule to breaches of patient records subject to Part Providers must notify affected individuals, the Secretary of HHS, and in some cases the media in the event of a breach. The Rule will become effective 60 days after its publication in the Federal Register on February 16, 2024, with compliance required by February 16, 202