Providence St. Joseph Health Comments on Confidentiality of Substance Use Disorder Patient Records

WASHINGTON, Nov. 14 -- Rod Hochman, president and CEO of Providence St. Joseph Health, Renton, Washington, has issued a public comment on the Department of Health and Human Services's proposed rule entitled "Confidentiality of Substance Use Disorder Patient Records". The comment was written on Oct. 25, 2019, and posted on Oct. 31, 2019:

* * *

On behalf of Providence St. Joseph Health, Providence Health Plan and Providence Health Assurance (Providence), thank you for the opportunity to provide feedback to the Substance Abuse and Mental Health Services Administration (SAMHSA) regarding the Notice of Proposed Rule-making on 42 CFR Part 2 ("Part 2") published in the Federal Register on August 26, 2019.

At Providence St. Joseph Health we are committed to providing for the needs of the communities we serve, with a special focus on those who are poor and vulnerable. We are dedicated to high-quality, compassionate health care for everyone - regardless of coverage or ability to pay. Together, we share a singular commitment to improve the health of our communities through digital innovation, population health and clinical quality strategies, mental health, specialty institutes, research and education. Our diverse family of organizations employ 119,000 people who serve in 51 hospitals, 1,085 clinics, a health plan, senior services and housing, and many other health and educational services across seven western states. Each year we work to provide care and services where they are needed most, including investments in community benefit that in 2018 totaled $1.6 billion.

Providence Health Plan (PHP) and Providence Health Assurance (PHA) are not-for-profit health care service contractors that administer health coverage for more than 600,000 members through Medicare Advantage, Medicaid, Individual, commercial group, and self-funded plans in Oregon and Washington. Providence Health Plan has more members in the Oregon Individual market than any other insurer and is the only state-wide insurer on the Oregon Exchange. Our plans are offered in response to each community's unique needs, and have received national recognition for quality, customer satisfaction and loyalty, health care integration, disease management and wellness campaigns.

Providence appreciates the opportunity to comment on the important topic patient confidentiality of substance use disorder (SUD) patient records. We greatly appreciate SAMHSA's work to make changes to 42 CFR Part 2 on aligning the needs of individuals with substance use disorder (SUD) and providers who treat patients with SUD, in order to facilitate well-coordinated care, while at the same time ensuring appropriate confidentiality for patients in Part 2 treatment programs. It is particularly difficult to ensure information regarding patients of entities covered by Part 2 is kept separate from other protected health information (PHI) in the EMR of an integrated health system. Sometimes, individual providers are unsure if they are subject to Part 2. The result is that PHI is often not shared, creating potential patient safety concerns for individuals seeking treatment and a barrier to population health activities. While the changes proposed in this rule are an initial step in making progress toward easing burdens on providers who treat patients with SUDs, there is much more that could be done. Providence believes that Congressional action is needed to change the basic framework for information sharing so that it aligns with requirements under the Health Insurance Portability and Accountability Act (HIPAA). We strongly urge SAMHSA to work with Congress to sunset 42 CFR Part 2 and address privacy considerations related to substance abuse treatment within HIPAA itself. This would allow substance abuse treatment information to remain subject to robust protections while ensuring that individuals receive the care that they need.

Applicability of Part 2 rules to non-Part 2 providers

SAMHSA proposes adding a new subsection stating that a non-Part 2 treating provider would not be considered to have re-disclosed a record under Part 2 by recording information about a SUD and its treatment, so long as any Part 2 records are segregated from the non-Part 2 provider's records. Further, by amending the existing definition of "records," the agency proposes that information conveyed orally by a Part 2 program to a non-Part 2 provider for treatment purposes with patient consent does not, if then written down, become a record subject to Part 2 rules. Other records transmitted from a Part 2 program to non-Part 2 provider are not subject to Part 2 rules as long as they are segregated. Providence supports these proposals and thanks the agency for proposing these changes. It would have been helpful, however, if SAMHSA had accounted for a situation in which a non-Part 2 provider received a Part 2 electronic record as well as Part 2 verbal information from the same Part 2 provider, and distinguished that the verbal information must go into a non-Part 2 record so there is not confusion.

Consent requirements

SAMHSA clarifies that under consent requirements patients can consent to disclosure of Part 2 information to named organizations as well as named individuals. While Providence St. Joseph Health appreciates this clarification, we believe it would have been even more helpful in reducing burden on clinicians and providers, if Part 2 information could be disclosed, with patient consent, to categories or types of organizations.

Disclosures permitted with written consent

SAMHSA proposes to include an illustrative list of disclosures that are permitted with written consent for the purpose of payment and healthcare operations. Providence St. Joseph Health appreciates the proposal to add this list to the regulatory text and believes it will alleviate confusion among providers, however we urge CMS to make sure that stakeholders understand this list is illustrative and not inclusive.

Disclosures to prevent multiple enrollments

SAMHSA proposes to expand the scope of a permitted disclosure so that non-Opioid Treatment Program providers with a treating provider relationship may query a central registry to determine if their patient is already receiving opioid treatment, in order to prevent multiple enrollments in treatment programs. Providence St. Joseph Health believes this change to the Part 2 rules will be helpful to meeting the intended policy goal and we support this provision.

Medical emergencies

SAMHSA proposes to include natural and major disasters within the meaning of a medical emergency for which disclosure may be necessary without a patient's consent. Providence St. Joseph Health supports the proposal to add this provision to the Part 2 rules.

Disposition of records

Currently, electronic records must be "sanitized" within one year of the discontinuation of the Part 2 program; sanitization must render the patient identifying information non-retrievable. This policy extends to staff personal devices. For example, if a staff member received a text message or email from a patient on his or her personal cell phone. SAMHSA proposes to clarify that if such interactions occur, the employee should immediately delete the information and only respond via an authorized channel provided by the Part 2 program (unless responding directly is in the best interest of the patient). Providence St. Joseph Health believes that this may be inconsistent with some state record retention rules. We ask the agency to clarify whether a provider might be compliant with both state laws and this proposed rule if the personally identifiable information was not retrievable, but not disposed completely.

Thank you for the opportunity to provide information on this important topic. We hope that you find our input informative. For more information, please contact Sarabeth Zemel, manager, federal regulatory affairs and engagement, at (425) 525-3228 or via email at [email protected].

Sincerely,

Rod Hochman, MD

President and CEO

Providence St. Joseph Health

* * *

The proposed rule can be viewed at: https://www.regulations.gov/document?D=HHS-OS-2019-0011-0001

TARGETED NEWS SERVICE, Harwood Place, Springfield, Virginia, USA: Myron Struck, editor; 703/304-1897; [email protected]; https://targetednews.com