Lawmakers Wrestle With Patient Privacy for Substance Abuse Records

Kerry Dooley Young

May 09, 2018

WASHINGTON — A House panel on Tuesday debated approaches for giving medical professionals broader access to information about patients' histories of substance abuse, while also trying to protect people from discriminatory use of this information.

The House Energy and Commerce Committee's health panel held a hearing on proposed legislation, titled the Overdose Prevention and Patient Safety Act. It would permit sharing of substance abuse disorder (SUD) records between so-called covered entities, which the committee's briefing memo describes as "health providers, payers, and business associates." This sharing would fall under the rules of the Health Insurance Portability and Accountability Act (HIPAA) "for the purposes of treatment, payment, and healthcare operations," the memo stated.

The health panel devoted several hours to thorny questions regarding sharing patients' records of substance abuse. Members of both parties expressed concerns about jeopardizing people's employment through broader disclosure, while also seeing a need for more tools to fight the national opioid crisis. Opioids, including heroin and prescription medicines, killed more than 42,000 people in 2016, more than any year on record, according to the Centers for Disease Control and Prevention.

"We've got to open up and talk to each other. The siloing of this stuff is what's killing people, in my opinion," said Rep. Michael C. Burgess, MD (R-TX), the chairman of the Energy and Commerce Committee's health subcommittee, on the need to expand sharing of records of substance abuse. "We've got to do better than what we're doing."

The draft medical privacy legislation is only one part of a major effort by the key committees in Congress to clear a package of opioid legislation in the months ahead, despite the challenges of completing bills in election years. The House Energy and Commerce Committee will this month hold two markups of opioid legislation, with the first of these scheduled for Wednesday. More than 30 bills are slated for consideration. The Senate's health committee last month approved its own package of bills.

"Life-Threatening Firewall"

On Tuesday, the House Energy and Commerce Committee's oversight and investigations panel held a morning hearing regarding the role of wholesale drug distribution and diversion in the opioid epidemic. The panel called as witnesses the leaders and top executives of firms, including Cardinal Health, Inc, and the AmerisourceBergen Corporation.

In the afternoon, the health subcommittee considered the measure on medical privacy and substance abuse, which was offered by Rep. Markwayne Mullin (R-OK) and Rep. Earl Blumenauer (D-OR). The committee staff referred to this measure as a "discussion draft," signaling the possibility that the legislation would undergo substantial revision.

Burgess and many colleagues in both parties want to update the confidentiality law and rules, known as Part 2 regulations, that the federal government put in place in the 1970s in response to the stigma associated with substance use. The Substance Abuse and Mental Health Services Administration (SAMHSA) has twice since revised Part 2 regulations.

The most recent update was intended to make it easier to align Part 2 with HIPAA to allow sharing of records within accountable care organizations and health information exchanges. SAMHSA has told Congress that federal law must be changed to allow further changes to Part 2, the Energy and Commerce Committee stated in its memo.

Blumenauer, who does not sit on the Energy and Commerce Committee, appeared as a witness at the hearing. He argued that the current set of rules have created a "life-threatening firewall" that segregates medical records at addiction treatment facilities from other parts of patients' medical records. This separation can be breached in an emergency or with the written consent of the patient, which can be impossible or difficult to secure, Blumenauer said.

The bill he's developed with Mullen would increase the financial stake for violating patients' privacy regarding substance abuse. Current penalties for improperly disclosing or sharing confidential patient information under Part 2 range from $500 to $5000. The draft legislation would put these violations on par with breaches of HIPAA, with penalties ranging as high as $1.5 million.

Blumenauer also said the bill would maintain the federal restrictions against sharing people's substance use treatment records with employers, law enforcement, and landlords. It would also require automatic dismissal of criminal proceedings that are based on improperly obtained records of SUD treatment, he said.

Impact on Employment

Rep. Morgan Griffith (R-VA) said he would give his reluctant support to the bill at the end of the hearing. He entered the hearing unsure of whether he would support it. Griffith remains concerned about how expanding the sharing of substance abuse records might affect the employment of healthcare professionals. Under the draft considered Tuesday, a "covered entity" might have access to the records of medical professionals who are seeking employment, he said.

Griffith asked his colleagues to consider what might happen to a nurse, for example, who is in recovery and is seeking a job with an insurer.

"What's the likelihood that that nurse is ever going to get that job? That he's going to be excluded because, as they're doing the workup, the paperwork and so forth, they discover that he's got a prior substance abuse problem?" Griffith asked. "And they'll never say why. But all of a sudden [they'll tell him,] "Oh, we found out we don't have an opening.' "

Rep. Frank Pallone Jr of New Jersey, the ranking Democrat on the House Energy and Commerce Committee, said he feared the approach taken in the Mullin-Blumenauer bill would dissuade people from undergoing medical treatment. In the United States in 2016, only about 4 million people of approximately 21 million who were in need of treatment for substance use disorder received it, Pallone said, citing data from SAMHSA's National Survey on Drug Use and Health.

Pallone urged his colleagues to consider the question of medical privacy from the point of view of a person in recovery or in need of treatment. Such a person may fear discrimination by physicians and insurers and even arrest, prosecution, and incarceration as a result of broader disclosure of their past substance abuse.

"Disclosure of substance use disorder information has tangible consequences that are not the same as other medical conditions," Pallone said. "You cannot legally be fired for having cancer, you are not denied visitation to your child due to severe acne, and you are not incarcerated for having a heart attack."

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