To fight opioid misuse, the U.S. government proposes expanding access to medical records on substance use.
Over 20 million Americans needed substance use treatment last year. Yet only about 4 million of them ever received treatment.
To promote better access to treatment for individuals with substance use disorder (SUD), the federal agency dedicated to addressing substance abuse and mental illness recently proposed a rule that would change the current confidentiality regulations for SUD records.
The changes in the new rule would expand access to medical records on SUD by removing some of the heightened privacy regulations for addiction treatment that precede modern health care privacy laws. Through the increased sharing of SUD information across a patient’s network of providers, including both addiction specialists and primary care physicians, the changes seek to facilitate care coordination and enhance addiction treatment.
The proposed rule is a response to criticism that the current SUD privacy regulations contributed to the opioid crisis and created a gap in treatment. The existing regulatory structure, some supporters of the proposed rule argue, is so convoluted that providers struggle to navigate the laws, discouraging them from specializing in addiction treatment.
The federal government issued the current confidentiality laws in the mid-1970s to protect patient health information in federally-funded addiction treatment programs. By curbing the use of SUD information for non-medical purposes, such as prosecution or investigation, the Substance Abuse and Mental Health Services Administration (SAMHSA) aimed to prevent patients with SUD from experiencing discrimination. The potential use of records outside the health care context, SAMHSA then reasoned, would deter patients from seeking further treatment.
But many critics of SAMHSA’s newly proposed changes to the confidentiality laws fear that the revisions would threaten patient privacy by relaxing restrictions on law enforcement’s access to health records.
SAMHSA, however, maintains that the protection of privacy for patients seeking addiction treatment remains the central aim of the regulation. The proposed rule, SAMHSA explains, attempts to expand addiction care and address the increased pressures on providers from the growing patient population with SUD.
The agency’s first proposed change would seek to increase access to care by permitting patients to consent to provide their information to non-medical entities, which would streamline the process for applying to federal and state benefits programs. In addition to supporting patient access to social services, SAMHSA contends that its proposed change would improve communication between opioid treatment providers (OTPs) and non-OTPs by sharing SUD health records in a central registry and in prescription drug monitoring program databases.
Disclosing patient health information across OTPs and non-OTPs would minimize the risk of accidental over-prescriptions. The increased access to health records in shared medical portals would provide effective monitoring of prescription treatment plans.
SAMHSA Assistant Secretary for Mental Health and Substance Use Elinore F. McCance-Katz explained that “the lack of critical substance use history…can lead to potentially damaging consequences…This rule aims to ease the sharing of information, reduce burden for providers, and increase access to care for individuals while at the same time maintaining important privacy controls.”
But some addiction specialists worry that the changes would jeopardize patient privacy.
Under an additional update to the confidentiality regulation, law enforcement would have increased access to patient health information for investigating criminal activity. Courts would be permitted to order a disclosure of patient records during an investigation of “an extremely serious crime,” which includes crimes not committed by the patient but where a patient’s health information could facilitate the investigation, such as prescription opioid diversion in health systems.
Supporters of the revision contend that cooperating with law enforcement in its investigation of crimes linked to substance use would strengthen efforts to combat the opioid epidemic.
Many providers and patient groups, however, disagree with this claim, arguing instead that the proposed rule would undermine the fight against opioid addiction.
Although SAMHSA ensures that the confidentiality regulation would continue to prevent law enforcement from using a patient’s SUD information for criminal prosecution against the patient, the agency’s proposed rule would expose a patient’s history of drug misuse outside the scope of medical purposes, providers claim.
This consequence may prevent individuals from pursuing treatment since their records could reveal the use of illegal substances. The increased opportunity for law enforcement to use a patient’s health information would cause patients to self-incriminate and would stigmatize substance use as “a poor choice or evil vice” rather than as a medical issue.
By further entangling addiction treatment with the criminal justice system, the proposed changes would serve as a setback in the fight against opioid overdoses by discouraging individuals from seeking medical help, some patient advocates worry.
Yet some providers agree with SAMHSA that the federal government should reform privacy laws and regulations for patients with SUD to better promote and streamline care among providers.
They argue, however, that action beyond updating the current regulation is needed to align SUD privacy regulations with other privacy laws, such as the Health Insurance Portability and Accountability Act. These providers assert that change should stem from congressional action in addition to agency rulemaking.
The public comment period on SAMHSA’s proposed revisions to the confidentiality regulation closed on October 25, 2019.