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Confidentiality of Substance Use Disorder (SUD) Patient Records

On February 8, 2024, the Department of Health and Human Services (“HHS”) and the Substance Abuse and Mental Health Services Administration issued a final rule modifying the Confidentiality of Substance Use Disorder Patient Records regulations, 42 CFR Part 2 (“Part 2”). According to the HHS Fact Sheet, the following modifications were made:

Patient Consent

  • Single consent for all future uses and disclosures for treatment, payment and health care operations is allowed.

  • HIPAA covered entities and business associates that receive records under this consent may redisclose the records in accordance with HIPAA regulations.

Other Uses and Disclosures

  • Permits disclosures of records without patient consent to public health authorities if the records are de-identified according to HIPAA’s standards.

  • Restricts the use of records and testimony in civil, criminal, administrative and legislative proceedings against patients, absent patient consent or court order.

Generally, the final regulations are meant to “align certain aspects” of Part 2 with HIPAA and HITECH rules.   Confidentiality of SUD patient records is important because, without those protections, some individuals may not seek treatment for SUDs for fear of prosecution or discrimination.   Accordingly, HIPAA covered entities and business associates should take note that, while individuals may consent to disclosure of SUD patient records for treatment, payment, and health care operations, a separate patient consent must be provided (absent a court order) to disclose those records in a civil, criminal, administrative, or legislative proceeding against the individual. 

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