In a letter to the U.S. Department of Health and Human Services (HHS) Secretary Xavier Becerra, MACPAC commented on a notice of proposed rulemaking on the confidentiality of substance use disorder (SUD) patient records. The proposed rule implements section 3221 of the Coronavirus Aid, Relief, and Economic Security Act (CARES, P.L. 116-136), which aligns certain 42 CFR Part 2 (Part 2) requirements with Health Insurance Portability and Accountability Act (HIPAA, P.L. 104-191) rules for protected health information.
The Commission is broadly supportive of HHS’s efforts to improve the ability of patients and providers to share SUD information, while strengthening patient rights and protections. Due to the unprecedented scope of changes to Part 2, MACPAC believes that clear and timely implementation guidance is necessary to support compliance with Part 2 requirements. This includes encouraging HHS to develop a voluntary certification for information technology (IT) practiced in integrated care and behavioral health settings, and providing education and technical assistance to support provider and plan Part 2 compliance and ensure that individuals understand their patient rights and protections afforded to them under the new rules.
However, the Commission is concerned about the stricter consent requirements proposed for intermediaries (e.g., health information exchanges and accountable care organizations), as well as HHS’s decision to implement new antidiscrimination protections in separate rulemaking. Different and more stringent requirements for intermediaries could result in confusion for providers, intermediaries, and individuals with an SUD diagnosis, and impede the sharing of Part 2 information to entities that support care coordination. Furthermore, excluding anti-discrimination provisions established by the CARES Act may discourage care-seeking for SUD treatment. MACPAC encourages HHS to engage in rulemaking implementing the anti-discrimination provisions, and take steps to ensure that greater data sharing does not exacerbate racial and ethnic inequities in SUD access and outcomes.