The coronavirus (COVID-19) global pandemic impacts every area of healthcare, including programs that provide alcohol or substance use diagnosis and treatment. Many treatment programs are closed or are providing care remotely via telehealth. In some areas, treatment is provided by simple telephone calls where telehealth technology isn’t available. Under these circumstances, it is often not feasible to get the required written consent for disclosure of medical information for coordination of care of patients.

Congress passed the Coronavirus Aid, Relief and Economic Security Act, (CARES) on March 27, 2020, a bill that includes changes that will ease the restrictions included in 42 CFR Part 2 preventing the sharing of patients’ substance use records. With the passing of the CARES Act, disclosing patients’ addiction records for treatment, payment, and operations (TPO) will be far less restrictive.

    • Patients can give an initial written consent that will allow disclosure of their health information for TPO in accordance with the HIPAA Privacy Rule
    • Health Information can also be redisclosed in accordance with the HIPAA Privacy Rule until consent is revoked by the patient in writing

The CARES Act also extends the protection of patients’ health information:

    • Breach enforcement moves under Office of Civil Rights (OCR); financial penalties can be assessed up to $50,000 per occurrence
    • Court order or patient consent is required for disclosure of Part 2 medical records in legal proceedings
    • Prevent discrimination towards patients

The guidance provided by the Substance Abuse and Mental Health Services Administration (SAMHSA) allows for the release of medical records from substance use and disorders programs in a medical emergency to health care providers who are treating the patient, without the patient’s written consent. Redisclosure of the medical information obtained is permitted if deemed necessary by health care providers. These providers ultimately are the decision-makers who determine if a medical emergency exists and disclosure of the medical information is needed in order to treat the patient. One of the reasons prompting this change is the need to prevent health care providers from accidentally prescribing opioids to patients in recovery.

Health and Human Services (HHS) is required to amend 42 CFR Part 2 to align with the HIPAA Privacy Rule exception for disclosure of PHI for Treatment, Payment Operations (TPO) by March 2021. SAMHSA will also provide additional guidance. In the interim, SAMHSA guidance and the CARES Act offer direction to providers for releasing substance use and treatment records in medical emergencies during the COVID-19 crisis.

For additional information, see the CARES Act and the CARES Act Part 2, which incorporates Jessica Grubb’s Legacy Act.

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