Confidentiality of Alcohol and Drug Abuse Patient Records, 42 Code of Federal Regulations, Part 2
The Confidentiality of Alcohol and Drug Abuse Patient Records (“Part 2”) is a federal regulation enacted to encourage substance abusers to seek treatment without the fear of stigmatization or criminal prosecution. The regulations provide one of the highest levels of medical record confidentiality* and highly restrict the use or disclosure of patient records.
*The Part 2 regulations classify patient records as “confidential.” Under Minnesota law these data are “private” allowing patients to access their own records.
How does Part 2 interact with Minnesota state law?
The Part 2 regulations preempt Minnesota state law. The regulations expressly say that “no State law may either authorize or compel a disclosure prohibited by these regulations.”
What kinds of records are covered under Part 2?
Covered records include the “identity, diagnosis, prognosis or treatment of any patient that are maintained by any federally-assisted treatment center in connection to the treatment of drug or alcohol abuse.” This means that the Part 2 regulations protect all information that could identify a person, directly or indirectly, as being a patient at a substance abuse treatment center, or as having a past or current substance abuse problem.
Does everyone have to comply with Part 2?
Part 2 applies if a program is federally assisted and provides alcohol or drug abuse diagnosis, treatment, or referral for treatment. A treatment center is considered federally assisted if any of these apply:
- Authorized, licensed, certified, or registered by the federal government
- Receiving federal funds in any form
- Assisted by the IRS through a grant of tax exempt status or allowance of tax deductions;
- Authorized to conduct business by the federal government (i.e. Medicare provider, authorized to conduct methadone maintenance treatment, or registered with the DEA to dispense controlled substances)
- A program directly conducted by the federal government
Are there any times when Part 2 confidentiality doesn’t apply?
Yes, there are six instances in which the regulations do not apply.
- Sharing with the Veterans’ Administration.
- Sharing among the Armed Forces and the Veterans’ Administration.
- Sharing between a treatment facility and an entity having direct administrative control or between program personnel.
- Sharing through a valid Qualified Service Organization Agreement.
- If a patient commits a crime on the premises of the treatment facility or against treatment staff.
- If necessary to report suspected child abuse or neglect.
When can records under Part 2 be disclosed?
Consent. A treatment facility may ask a patient to provide consent for a disclosure. The following elements are required in all Part 2 consent forms:
- Specific name or general designation of the program or person permitted to make the disclosure
- Name and title of individual, or name of the organization, to which the disclosure is to be made
- Name of patient
- Purpose of disclosure
- How much and what kind of information is to be disclosed
- Signature of patient (or patient’s representative)
- Date on which consent is signed
- Statement that consent is subject to revocation at any time (except to the extent that the consent has already been relied upon)
- Date, event, or condition upon which the consent will expire if not revoked (patient is allowed to revoke the consent at any time)
The regulations provide a Sample Consent Form.
Permitted disclosures. There are three circumstances when a facility is permitted to disclose patient information:
- Medical emergencies
- Crimes on the premises or against program personnel
- Court orders
Mandatory disclosures. A treatment facility must disclose patient information if the requestor has both a court order and a subpoena.
What is a Qualified Service Organization Agreement?
A Qualified Service Organization Agreement (QSOA) is an agreement between a Part 2 program and a Qualified Service Organization (QSO) that permits the exchange of patient identifying information.