The CARES Act made significant changes to the law governing the confidentiality of substance use treatment records. When the President signed the CARES Act on March 27, 2020, most of the focus was on the appropriations of significant financial assistance for health care providers, small businesses, airlines, universities, states, and local governments and to regulatory reforms, such as changes in telemedicine rules or coverage for diagnostic tests intended to make it easier for health care providers to care for patients during a pandemic. The changes to the substance use treatment record confidentiality law, while less well-known, are likely to have a significant impact on the health care system’s ability to provide coordinated care to patients suffering from substance use disorders. These changes will take effect on March 27, 2021.
Under prior law and associated regulations (sometime referred to as the “Part 2 Rules”), a federally assisted substance use treatment program was subject to very strict rules regarding the confidentiality of substance use treatment records, and most disclosures required a very specific, single use consent signed by the patient. Further, the confidentiality and consent requirements followed the information, so that recipients of the treatment records, such as hospitals, physicians, and health plans, became subject to the same consent requirements. Many health care providers felt that these special consent requirements greatly hampered care coordination for patients suffering from substance use disorders.
The amendments include several key provisions.
Overall, these amendments should greatly ease care coordination between substance use treatment programs and general medical providers, such as hospitals and physicians. Additionally, many of the complexities of maintaining substance use treatment records have now been eliminated or reduced. The flexibility created by these amendments will be welcomed by many health care providers and health plans.
At the same time, health care providers, health plans, and business associates should take note that the rules governing confidentiality of substance use treatment records will now be subject to the civil administrative penalties in the HIPAA privacy rule and that willful violations could be subject to the more severe criminal sanctions in the HIPAA statute, as well.
Visit our COVID-19 Resource Center often for up-to-date information to help you stay informed of the legal issues related to COVID-19.
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