The Health Insurance Portability and Accountability Act of 1996 (HIPAA) was a landmark Act through its eliminating much of the protection that previously existed with respect to patient information held by a treating clinician. The Privacy Rule, a component of HIPAA, allows the treating clinician to disclose otherwise protected health information without any authorization or permission by the patient, in 12 specific instances: to employers who request information concerning a work-related illness or injury; under a wide variety of local statutes, regulations and court orders; to governmental authorities where victims of abuse, neglect or domestic violence are involved; in response to a law enforcement official’s request for information about a victim or suspected victim of a crime; or when a clinician believes that protected health information is evidence of a crime that occurred on its premises.

That is but a small sampling of the wide range of disclosures that are permitted under HIPAA, again with absolutely no permission required from the patient. Can you imagine? Under HIPAA, if a clinician feels that a patient might have given a controlled substance to another patient while on the premises, thereby committing a crime, the clinician could comfortably turn both patients in to law enforcement officials. Similarly, an eager new law enforcement agent suspecting such behavior among your methadone program patients could request your records and under HIPAA fully expect that you would deliver these records at once.

Thankfully, we have federal confidentiality regulations at 42 CFR Part 2, commonly called simply Part 2, which take precedence and protect our patients. Part 2 applies to all medical information about any person who has applied for or been given a diagnosis or treatment for substance use disorders at a federally assisted program. Within Part 2 is protection for all such information, forbidding disclosure to any third party, independent of those allowed for within HIPAA, without specific approval by the patient. This past June, the Substance Abuse and Mental Health Services Administration (SAMHSA) released additional information as to how to apply these confidentiality regulations.

In the past, Part 2 was generally interpreted to apply only to federally assisted programs such as a licensed drug/alcohol treatment center. The newly released interpretation indicates that a private physician, who is registered with the U.S. Drug Enforcement Agency (DEA) to dispense a controlled substance used in the treatment of alcohol or drug abuse, such as buprenorphine, would also be included in Part 2 protections. Clinicians who use benzodiazepines for alcohol detoxification “require a federal DEA registration and become subject to Part 2 through the DEA license,” notes the new guidelines. I find it difficult to imagine a scenario in which a clinician or program treats substance use disorders but would not fall under Part 2.

The information protected by Part 2 is any information identifying an individual as having a current or past drug problem, or as being a participant in a Part 2 program.  That latter sentence is fascinating: those of us with a DEA registration now represent a Part 2 program, and if we cannot release information indicating that individuals are patients, we cannot release any information about the patient. Note that this holds true even for purposes of payment,  except under certain specific conditions. Also to be taken into consideration, are the specific elements required for patient consent to release of information. There are nine such elements, all of which must be in writing and which are fully described at 42 CFR § 2.31. The entirety of the SAMHSA guidance is available at http://www.samhsa.gov/newsroom/advisories/1006165837.aspx

The new guidance has given rise to much debate within the field of addiction medicine. On one side are individuals who feel that HIPAA has left patient privacy tattered and torn, who are proud that our patients have very reasonable privacy provisions in place, and who believe that Part 2’s protections should be expanded to cover all patients in any medical setting. On the other side are individuals who have a deep concern that separating addiction patients in this way will cause further disdain for the diagnosis of a substance use disorder in patients for whom it may be applicable, resulting in a deterioration of availability of addiction treatment despite the obvious great need. These latter individuals have a further concern that as electronic medical records become more prevalent, the privacy requirement applying to addiction patients could result in information about their treatment not reaching other treating clinicians. Imagine if a patient on metha­done is admitted for surgery; the surgeon checks the available medical information and finds everything except that the patient is an opioid addict who is now maintained on 170mg of methadone per day. That could turn out to be a critical point of information.

However, under HIPAA alone, our methadone patient could find his employer knowing all about his past opioid addiction and current methadone maintenance simply as a result of an inquiry about a recent workplace accident that had nothing to do with the addiction history or treatment. Is there a middle ground that would better serve our patients? It was simple in the good old days where treating clinicians shared all the information about any given patient with one another but with no one outside the healthcare treatment boundaries. Is it possible to return to those days, yet still have the benefits possible in terms of public health and public safety that we could gain through further sharing of information?

What are your thoughts? Should Part 2 be kept as strong as it is, or is the wide-open lack of confidentiality inherent in HIPAA the way of the future? Please send me your solutions at This e-mail address is being protected from spambots. You need JavaScript enabled to view it . The most insightful alternatives will be part of a future column.

Stuart Gitlow, MD, MPH, MBA, a psychiatrist, is a member of the American Medical Association’s Council on Science & Public Health, and an officer of the American Society of Addiction Medicine. This column represents his personal opinion and does not imply any position or
policy taken by either the AMA or ASAM.

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