Congress Grappling With Privacy Questions in Opioid Crisis

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By Alex Ruoff

Changes to federal health privacy rules restricting doctors’ access to drug treatment records could play a major role in Congress’s response to the opioid epidemic in the coming months.

Lawmakers recently passed a measure meant to help better flag for doctors when a person they’re treating has a history of substance use. Jessie’s Law was created for a woman who died from an overdose after being given a prescription for oxycodone despite telling her doctor she was recovering from an opioid addiction.

But the bill doesn’t solve the problem at the heart of the issue: Hospitals and doctors often can’t keep substance use records with the rest of a patient’s health history, leaving them without crucial information. A coalition of behavioral health and information management groups wants to change that by aligning federal health privacy rules so all health data must be treated the same.

“By aligning, we can get better coordination for patients, avert risk, and give them better care,” Duanne Pearson, senior director for federal affairs for Premier Inc., an alliance of thousands of hospitals and physicians, told Bloomberg Law.

Some substance abuse treatment providers, however, worry relaxing federal privacy rules could discourage some people from seeking drug addiction treatment out of fear their records will end up the wrong hands.

Substance abuse treatment records are protected by a 40-year-old statute commonly referred to as Part 2, which generally requires specific, written consent by the patient in order to be shared among doctors and hospitals. Most of a person’s other health data can be shared among the health-care providers who treat them for treatment, payment, or operations purposes.

To comply with these stricter rules most hospitals or doctors’ offices that keep substance use treatment data simply separate the files, with the result that drug treatment data are often not shared among doctors, Lauren Riplinger, senior director of federal relations for the American Health Information Management Association, told Bloomberg Law. Electronic records typically can’t separate the data either, so most drug treatment records are often left on paper while the rest of a person’s health history is digitized.

This means doctors sometimes don’t know if their patients have a history of drug or alcohol abuse, even if they’ve gotten treatment, and hospitals and doctors in integrated care models are missing crucial information, Riplinger said. This separation of the data also means some drug treatment centers are struggling to participate in some integrated care models, for which they have to share their patient data.

It also means researchers generally don’t have access to substance use disorder records. The Centers for Medicare & Medicaid Services didn’t include roughly 4.5 percent of inpatient Medicare claims and 8 percent of Medicaid claims in key research files because they contained some substance use disorder diagnoses, according to a 2015 study published in the New England Journal of Medicine.

AHIMA is part of a group of more than 30 health-care organizations including the American Hospital Association and the Blue Cross Blue Shield Association, known as the Partnership to Amend 42 CFR Part 2, looking to alter federal privacy rules.

Lawmakers appear eager to tackle the problems around the opioid epidemic, which contributed to 116 deaths each day in 2016, but wary of overhauling federal privacy rules.

What Could Change

The House’s champion to alter Part 2 rules, Rep. Tim Murphy (R-Pa.), left Congress late last year after a scandal. His proposal to alter federal privacy laws has been taken up by Reps. Markwayne Mullin (R-Okla.) and Earl Blumenauer (D-Ore.), who have since limited the changes Murphy has proposed.

House lawmakers are considering Mullin’s bill to allow doctors and hospitals to share substance abuse records for treatment purposes, but not for payment or other purposes. This limiting of the bill to just treatment purposes was meant to ease the concern of some lawmakers, Pearson said.

However, Reps. Frank Pallone Jr. (D-N.J.) and Gene Green (D-Texas) still voiced concern the legislation would relax federal privacy laws too much during a recent House Energy and Commerce Committee hearing on the opioid crisis.

Advocates are now weighing if they can return the bill to its original form, Pearson said. The House is expected to take up opioids legislation by Memorial Day, he said.

Hospital groups have warned the limitation might not make a difference in sharing substance use disorder records because of the difficulty in separating treatment and payment purposes.

America’s Essential Hospitals, in a letter to the House Energy and Commerce Committee ahead of a March 22 hearing on the opioid crisis, warned this would mean doctors couldn’t share treatment data for care coordination programs or for prescription drug monitoring programs.

To contact the reporter on this story: Alex Ruoff in Washington at aruoff@bloomberglaw.com

To contact the editor responsible for this story: Brian Broderick at bbroderick@bloomberglaw.com

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