February 10, 2023
In December 2022, a Notice of Proposed Rulemaking (NPRM) was published regarding proposed modifications to 42 CFR Part 2 (Part 2). The Addiction and Public Policy Initiative (Initiative) submitted comments outlining areas of concern to better support patient privacy rights and the confidentiality of substance use disorder (SUD) records. If adopted as drafted, the proposed regulations will compromise the privacy rights of people with SUD treatment records, putting them at risk of increased discrimination, stigma, and prosecution. Further, it may have a chilling effect on people seeking treatment in the midst of an overdose crisis.
The proposed regulations weaken patient privacy rights without implementing required anti-discrimination protections, expand the ways in which SUD treatment records may be used and shared without the patient’s actual knowledge, and permits general consent to last indefinitely. Further, the proposed changes include a “safe harbor provision,” limiting civil or criminal liability for investigative agencies upon “unknowingly” receiving Part 2 records without first obtaining the requisite court order.
These changes further erode the trust necessary between provider and patient for successful SUD treatment. In our comments, initiative staff provide specific recommendations to ensure that people directly impacted by the rule will be afforded greater protections.