SAMHSA issues guidance on disclosure of substance use disorder patient information

On March 19, 2020, the Substance Abuse and Mental Health Services Administration (SAMHSA) issued guidance on disclosure of substance use disorder (SUD) information during the COVID-19 pandemic national emergency period.  

The 42 CFR Part 2 regulations generally require the patient’s written consent in order to use or disclose patient identifying information from SUD patient records of a Part 2 program. As noted by SAMHSA, the medical emergency regulation (42 C.F.R. § 2.51) of 42 CFR Part 2 allows disclosure to medical personnel (and re-disclosure for treatment) to meet a bona fide medical emergency if the patient’s consent can not be obtained and the following information is documented in the patient’s record immediately following disclosure:

• The name of the medical personnel to whom disclosure was made and their affiliation with any health care facility;
• The name of the individual making the disclosure; and
• The date and time of the disclosure.

Although the Office for Civil Rights (OCR) on March 17, 2020 waived potential HIPAA penalties against health care providers that treat patients through remote audio or video communication technologies during the COVID-19 nationwide public health emergency, providers face additional hurdles to disclosing SUD information that is protected under 42 CFR Part 2. SAMHSA emphasized that in order to satisfy the medical emergency exception the provider must make his or her own determination of whether a medical emergency exists for the purpose of providing medical treatment.

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