HHS finalizes rule easing protection of substance abuse disorder medical records

HHS on Friday finalized a rule clarifying that courts can allow disclosure of confidential communications between patients and substance abuse treatment programs if it aids the investigation or prosecution of serious crimes.

It aims to correct a 2017 rule that reworked privacy protections for substance use disorder information. According to the final rule, HHS didn’t intend to block information that could help criminal investigations.

“As demand for treatment increases and new entities become (federally-assisted substance abuse treatment) programs, HHS believes that the need to prevent drug trafficking and patient exploitation at or by (those) programs makes it imperative to correct the error,” the rule said. “If left in its current form, the rule would hamper law enforcement efforts.”

HHS said it’s switching back to the original language “to prevent the occurrence of extremely serious crimes from interfering with the delivery” of high-quality treatment programs for people with substance use disorders.

When HHS’ Substance Abuse and Mental Health Services Administration asked for feedback on the proposed rule, several commenters worried the regulation would undermine patient privacy rights or the confidentiality of records. Commenters were also concerned the change would deter people with substance abuse disorder from seeking or staying in treatment.

“The change in the 2017 final rule was made in error, and it does not represent a departure from the basic privacy protections that SUD patients have held … since 1987,” HHS wrote. “We do not believe that an error made two years ago should alter the privacy and clinical practices of thirty years of prior precedent, nor should this reversion deter patients from treatment because of these concerns.”

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