Legal Blog

DHS Updates Confidentiality of Substance Use Disorder Patient Records Law

Medical RecordsSituation:  42 CFR Part 2 sets forth different requirements for the protection of Substance Use Disorder (SUD) treatment records than that required generally to patient medical records under HIPAA.  The duality creates a more complex process and burden on healthcare providers and patients in sharing of medical information. Section 3221 of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) requires the United States Health and Human Services Department (DHHS) to bring 42 CFR Part 2 into greater alignment with certain parts of HIPAA. 

Announcement:   On February 8, 2024, DHHS, through its Office of Civil Rights, and the Substance Abuse and Mental Health Services Administration (SAMHSA) announced the final rule that implements changes to 42 CFR Part 2.  Those changes include:

  • Allows use of a single consent for all future use and disclosure of Part 2 records for treatment, payment, and health care operations.
  • Allows HIPAA-covered entities and their business associates to redisclose Part 2 records in accordance with the HIPAA Privacy Rule.
  • Expressly states that segmenting Part 2 records is not required.
  • Creates a new definition for SUD clinician notes similar to those permitted by HIPAA for psychotherapy notes.
  • Prohibits combining patient consent for the use and disclosure of Part 2 records in civil, criminal, administrative, and legislative proceedings with patient consent for any other use or disclosure.
  • Requires that each disclosure made with patient consent include a copy of the consent or a clear explanation of the scope of the patient consent.

The intended result is a decreased burden on patients and healthcare providers, improved coordination of care, and increased access to care, while protecting the confidentiality of SUD treatment records.

To view the new Rule, visit:  Federal Register :: Confidentiality of Substance Use Disorder (SUD) Patient Records