Raja Sékaran Quoted on Revisions to Federal Government’s Substance Abuse Privacy Rule

Health Plan Weekly

Raja Sékaran was quoted in the Health Plan Weekly story, “Privacy Rule Change Could Improve SUD Care Coordination.” The article looks at the potential impact of the recently finalized revisions to the Substance Abuse and Mental Health Services Administration’s 42 CFR Part 2 rule on substance use disorder (SUD) treatment.

Commenting on the matter, Raja said, “I think the final rule provides more freedom for using information that previously was more confidential under Part 2. It seems to be geared towards practical considerations that had inhibited the use of such data.”

Raja added that he also sees “a lot of opportunities for broader waivers and consents for information to be shared in different contexts.” He closed by saying that the rule “should improve care coordination for patients being treated for SUD.”

Health Plan Weekly is a publication of AIS Health. You can find the full article below.

Privacy Rule Change Could Improve SUD Care Coordination

Jul 27, 2020

Stakeholders across the health care industry praised recently finalized revisions to the Substance Abuse and Mental Health Services Administration’s 42 CFR Part 2 rule. The changes loosen disclosure and privacy requirements about a patient’s history of substance use disorder (SUD) treatment. Experts say the rule should improve care coordination for people with SUD challenges, though some expressed concerns about limited care resources and patient privacy.

“I think [the final rule] provides more freedom for using information that previously was more confidential under Part 2. It seems to be geared towards practical considerations that had inhibited the use of such data,” health care lawyer Raja Sékaran, a partner at Nossaman LLP, tells AIS Health. Sékaran previously worked as an attorney in HHS’s Office of Inspector General. “What I see in it are a lot of opportunities for broader waivers and consents for information to be shared in different contexts.”

The regulation commonly known as Part 2 was first implemented in the 1970s as part of the Drug Abuse Office and Treatment Act of 1972. Among other changes, the final rule revising the old regulations specifies that “treatment records created by non-Part 2 providers based on their own patient encounter(s) are explicitly not covered by Part 2, unless any SUD records previously received from a Part 2 program are incorporated into such records.” That change is intended to facilitate coordination of care between providers that are not in the Part 2 program, according to an HHS fact sheet.

Even with the finalized changes, “Part 2 continues to prohibit law enforcement’s use of SUD patient records in criminal prosecutions against patients, absent a court order,” HHS said. “Part 2 also continues to restrict the disclosure of SUD treatment records without patient consent, other than as statutorily authorized in the context of a bona fide medical emergency; or for the purpose of scientific research, audit, or program evaluation; or based on an appropriate court order.”

Sékaran says the rule should improve care coordination for patients being treated for SUD. According to Joe Glass, Ph.D., a clinical researcher at Kaiser Permanente’s Washington Health Research Institute, that’s an important goal given the shortage of SUD providers and the ongoing opioid epidemic. Glass’ research focuses on how health systems can better integrate SUD treatment into the organization at large.

“The new way of thinking that we really need to move to is that substance use is a health condition that needs to be treated within health care systems,” Glass tells AIS Health. “These old, kind of draconian privacy laws that might want to restrict the coding of a[n SUD] diagnosis in a primary care setting — or the hesitation by [a primary care practitioner] to provide a diagnosis like that — would really reduce any health system’s ability to provide the appropriate care to that individual. Especially nowadays with the opioid epidemic, somebody’s substance use disorder can inform their care for a lot of other conditions.”

Provider Churn Can Add to Challenges

Glass also observes that normal churn in the health care system can have a particularly acute impact on SUD patients, many of whom depend on relationship-based care and regular check-ins. “If I’m a patient and I have a substance use disorder, and I see a primary care doctor — health care professionals might get a new job. Then I might need to have a new primary care doctor. It’s really important that my history of treatment be documented,” Glass says.

In recent years, payers have pushed for closer coordination of care across all specialties. SUD treatment is no different. In a July 16 statement, Matt Eyles, the CEO of America’s Health Insurance Plans, praised the final rule along those lines.

“We applaud the release of the final HHS rule empowering patients with greater flexibility to share their substance use treatment records,” Eyles said. “The rule reduces unnecessary burdens on patients and gives patients better control of their health information while maintaining key elements of confidentiality. America’s health insurance providers understand that substance use disorder is a chronic health condition and are taking action to address it.”

Regulations aside, there are still challenges in integrating SUD treatment into general medical practice. The 2019 National Drug Control Strategy, an annual White House report, notes there are “critical shortages” in addiction treatment capacity.

In a February 2019 memo arguing for more SUD provider education funding, the American Society of Addiction Medicine observed that “only 66 of the nation’s 187 accredited medical schools offer addiction medicine fellowships — compared with 276 accredited fellowship programs in sports medicine — and only 40 of those have met the certification criteria set by the Accreditation Council for Graduate Medical Education.”

So, in the absence of specialized SUD treatment, primary care and behavioral health providers must fill in some of the gap. That presents some complications.

David Vickery, M.D., an Asheville, N.C. primary care physician, says he hesitates to code SUD diagnoses as often as some screening protocols might require.

“I’ve had several patients go into an emergency department setting [under the influence of substances],” Vickery tells AIS Health. “Two of them involved alcohol use, and one of them involved casual use of marijuana. In each of these situations, these patients did not go to the emergency department because of those particular substances. It didn’t play a role in the reason they visited — in one case, the guy had a laceration. Later, when I was reviewing their discharges in follow-ups, we were shocked to realize that the one using marijuana had substance use disorder on his record, and the other two had alcohol misuse disorder on their records.”

Vickery says he’s seen each of those patients for some time, and none has struggled with a long-term addiction to the substances in question. He worries that his patients will struggle to obtain life insurance with an SUD diagnosis on their record.

Advocacy Group Raises Privacy Worries

The Legal Action Center (LAC), an advocacy group that works against discrimination against people with a history of substance use, criticized the HHS rule when it was proposed in 2019 (HPW 9/2/19, p. 1). In a September 2019 letter submitted during the public comment period for the regulation, the LAC raised concerns that the now-final rule “would expose the confidential communications of patients’ SUD records in criminal proceedings that involve other individuals who are suspected of illegal activities.”

At the time, LAC president and director Paul Samuels expressed support for SUD care coordination, but said older privacy rules are “a necessary protection for individuals who would otherwise be susceptible to a multitude of detrimental consequences if their SUD information was disclosed without their permission to potential employers, housing providers, law enforcement and more.”

Andrew Quanbeck, Ph.D., an assistant professor at the University of Wisconsin-Madison, is a systems engineer who studies technological implementation for health care providers and is the co-author of several peer-reviewed papers on SUD care. A major focus of his research is integrating SUD treatment into primary care and health system settings.

Quanbeck says he’s heard of the kind of stigma-related challenges for SUD patients that Vickery describes, but hasn’t studied it extensively and can’t speak to its prevalence. However, he is certain the goal of integrating SUD treatment into the general health system is frustrated by a lack of resources.

“Primary care is supposed to handle every health problem a person has, and they have very limited resources,” Quanbeck explains. “If they’re finding things out about alcohol use but they don’t have any tools or resources in place, it’s just one more thing that they’re responsible for without any ability to really do anything about it. From their perspective, I can understand why they wouldn’t even want to ask.”

Glass observes that the old 42 CFR Part 2 rule contributed to the scarcity of SUD treatment resources. He argues that the trickling flow of information between SUD specialists and primary care providers made it difficult for primary care providers to call on the resources they need.

“This rule has been changed over the course of a number of years, and every change is moving to a better direction. 42 CFR Part 2 is becoming more in line with reality, particularly where more and more treatment for substance use disorders is being provided outside of specialty treatment settings,” Glass says.

As more SUD treatment is provided in primary care settings, it’s necessary to revise rules that have been “prohibitive of good, patient-centered care that’s coordinated,” he adds. “There are things about substance use that need to be communicated between clinicians in order to provide effective care.”

Read the final rule at https://bit.ly/2OW9eNu and the LAC letter at https://bit.ly/2WOQ5BK.

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