21 Frequently Asked Questions: Applying the Substance Abuse Confidentiality Regu
21 Frequently Asked Questions: Applying the Substance Abuse Confidentiality Regulations to Health Information Exchange (HIE)
In 2010, the HHS Substance Abuse and Mental Health Services Administration (SAMHSA) and the HHS Office of the National Coordinator (ONC) published FAQs “Applying the Substance Abuse Confidentiality Regulations to Health Information Exchange (HIE).” The 2010 FAQs are available at Applying the Substance Abuse Confidentiality Regulations to Health Information Exchange (HIE) (PDF | 381 KB).
This document is an educational document from the Substance Abuse and Mental Health Services Administration (SAMHSA) and the U.S. Department of Health and Human Services. It was prepared by SAMHSA staff, in collaboration with staff from the Office of the National Coordinator for Health Information Technology, and contractors and should not be considered legal advice.
FREQUENTLY ASKED QUESTIONS
Q1. Does the federal law that protects the confidentiality of alcohol and drug abuse patient records allow information about patients with substance use disorders to be included in electronic health information exchange systems?[1]
A1. Yes. The federal confidentiality law and regulations (codified as 42 U.S.C. § 290dd-2 and 42 CFR Part 2 [“Part 2”]), enacted almost three decades ago after Congress recognized that the stigma associated with substance abuse and fear of prosecution deterred people from entering treatment, has been a cornerstone practice for substance abuse treatment programs across the country. Part 2 permits patient information to be disclosed to Health Information Organizations (HIOs)[2] and other health information exchange (HIE) systems; however, the regulation contains certain requirements for the disclosure of information by substance abuse treatment programs; most notably, patient consent is required for disclosures, with some exceptions.[3]
This consent requirement is often perceived as a barrier to the electronic exchange of health information. However, as explained in other FAQs, it is possible to electronically exchange drug and alcohol treatment information while also meeting the requirements of Part 2.
Q2. What types of providers are covered programs under 42 CFR Part 2 (“Part 2”)?
A2. To be a “program” that falls under 42 CFR Part 2, an individual or entity must be federally assisted and hold itself out as providing, and provide, alcohol or drug abuse diagnosis, treatment or referral for treatment (42 CFR § 2.11). A program is “federally assisted” if it is:
- authorized, licensed, certified, or registered by the federal government;
- receives federal funds in any form, even if the funds do not directly pay for the alcohol or drug abuse services; or
- is assisted by the Internal Revenue Service through a grant of tax exempt status or allowance of tax deductions for contributions; or
- is authorized to conduct business by the federal government (e.g., certified as a Medicare provider, authorized to conduct methadone maintenanc