www.ohca.com FALL/WINTER 2024 The Oregon Caregiver 23 SPONSORED CONTENT The intersection of mental health and privacy is of paramount importance—particularly in long term care facilities. However, it can be a delicate balance to ensure that sensitive patient information is protected while facilitating efficient and effective treatment for residents. This is particularly true for psychotherapy notes (regulated under HIPAA) and substance use disorder (SUD) records created or maintained by certain federally assisted programs (regulated under 42 CFR Part 2), which have historically presented differing compliance obligations. On February 8, 2024, the Department of Health and Human Services (HHS) released a final rule to align 42 CFR Part 2, which protects certain Part 2 SUD records, with HIPAA and the HITECH Act. This rule specifically aims to enhance care coordination and privacy protections for patients seeking SUD treatment by adopting more consistent and stringent compliance obligations. The rule became effective on April 16, 2024, with a final compliance date of February 16, 2026. These new rules not only impact Part 2 programs, but also lawful holders such as long term care facilities that may receive SUD records from Part 2 programs in the course of providing services to their residents. One key area of impact includes restrictions on certain disclosures of Part 2 SUD records. Under HIPAA, psychotherapy notes are given special protection and must be kept separate from the rest of a patient’s medical records. These psychotherapy notes require separate patient consent for use and disclosure. The new Part 2 rule extends similar protections to SUD counseling session notes, requiring them to be maintained separately and requiring both Part 2 programs and lawful holders to obtain a distinct consent for any use or disclosure. The rule also expands prohibitions on using and The Intersection of Mental Health and Privacy: Updates to 42 CFR Part 2 By Brent Hoard and Emma Trivax, Troutman Pepper disclosing Part 2 records in legal proceedings without patient consent or a court order. The good news is that, excluding SUD counseling notes, Part 2 programs and lawful holders now can obtain a single consent from patients to use and disclose Part 2 records for treatment, payment, and health care operations, when historically a new consent was required for each individual disclosure. There are also some limited circumstances where redisclosures by Part 2 programs and lawful holders are permitted without a new patient consent. This rule update should enhance the coordination care between Part 2 programs and long term care facilities. Overall, the new updates to Part 2’s robust privacy protections for SUD records will encourage patients to obtain SUD treatment, but nonetheless add additional compliance considerations for long-term care facilities that are in receipt of such records. In addition to existing criminal sanctions, the Part 2 rule adds potential civil monetary penalties for violations of confidentiality provisions. Therefore, entities that operate or receive information from Part 2 programs should consider reviewing and updating Part 2 policies and procedures, updating contract templates, and conducting training for relevant members of the workforce. Troutman Pepper is an OHCA business partner member. This article has been sponsored and provided by Troutman Pepper.
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