Ask a healthcare professional to disregard HIPAA and age-old policies on how to handle medical records, and you’ll probably be met with a confused stare. However, that is a possibility when dealing with substance abuse treatment records, the most confidential of medical records that also happen to play by a different set of rules – 42 CFR Part 2. When it comes to subpoenas, court orders, and other release of information requests, Part 2 governed records cannot be handled in the same manner that HIPAA would traditionally allow for medical records to be released.
Background
While healthcare professionals alike can describe the purpose, intent and guidelines found in the 22-year-old legislation referred to as “HIPAA,” many may have difficulty recounting its older predecessor governed by SAMHSA, or the Substance Abuse and Mental Health Services Administration. Initiated by the increase of illicit drug use in the 1970s, the government wanted to find a way to encourage drug abusers to seek treatment without the fear of retribution – and thus, 42 CFR Part 2 was enacted in 1972, many years before the patient privacy protections instituted in HIPAA.
With a growing opioid epidemic and more people seeking opioid abuse treatment in the United States, SAMHSA and 42 CFR Part 2 have reentered not only the national conversation but the dialogue within the healthcare industry as well. Even so, the differences between Part 2 and HIPAA can be difficult for healthcare professionals to sort out. Regardless of whether an organization is officially governed by Part 2, there is a chance these records could enter a practice and are subject to a prohibition on redisclosure. All healthcare organizations need to be prepared for these records to enter their practice, as well as to institute the additional confidentiality requirements necessary. For instance, Part 2 supersedes HIPAA on items like the exchange of Protected Health Information for treatment purposes without a patient authorization – there is no such treatment provision under Part 2. Because Part 2 records don’t play by the typical rules and regulations healthcare professionals are used to, they must understand where they have to challenge traditional policies and procedures to remain compliant with SAMHSA and 42 CFR Part 2 – the subpoena process provides a prime example.
Considerations for Subpoenas and Part 2 Records
The subpoena and court order process can differ across state lines, meaning many healthcare organizations have invested time and energy into understanding how to comply with state laws in additional to federal laws for the proper disclosure of medical records. However, Part 2 records are held in the highest and most protected confidence, meaning that the rules for typical medical record disclosure and Part 2 record disclosure are not one in the same.
For example, in many states receiving a subpoena or a court order for medical records in addition to the necessary compliance requirements would be enough to release the medical records. But records governed by 42 CFR Part 2 typically require both a subpoena to compel disclosure and a court order for release of the records. The court order has to incorporate the following requirements laid out in Part 2:
- the disclosure must be limited to those parts of the patient’s record which are essential to fulfill the objective of the court order,
- limit the disclosure to those persons who need the information for the basis of the court order, and
- include other measures as necessary to limit disclosure for the protection of the patient (example sealing from the public the records governed by Part 2).
Requiring both a court order and a subpoena is an effort to maintain the high level of confidentiality SAMHSA and 42 CFR Part 2 assert for these records. With the possible criminal penalties on the table for violating Part 2, organizations must institute stricter protocols to assess and release Part 2 records.
Conclusion
42 CFR Part 2 challenges a lot of what healthcare professionals believe to be steadfast truth in the records release process, and the subpoena process and court order process is no different. If you’re looking for ways to handle the shifting landscape of compliance, HIPAA and 42 CFR Part 2, ScanSTAT is here to help. Watch our recent webinar on SAMHSA and Part 2 or call us at (816) 381-9850 to see how we can take care of the records release process, including the complicated subpoena process.
This is for informational purposes only and does not constitute legal advice. Seek your own legal counsel to ensure compliance with federal and state law.