Partnership to Amend 42 CFR Part 2 Letter to HELP

April 23, 2018

The Honorable Lamar Alexander, Chairman
U.S. Senate Committee on Health, Education, Labor,
and Pensions
455 Dirksen Senate Office Building
Washington, DC 20510

The Honorable Patty Murray, Ranking Member
U.S. Senate Committee on Health, Education, Labor,
and Pensions
154 Russell Senate Office Building
Washington, DC 20510

Dear Chairman Alexander and Ranking Member Murray:

On behalf of the Partnership to Amend 42 CFR Part 2, a coalition of stakeholder organizations committed to aligning Part 2 with the Health Insurance Portability and Accountability Act (HIPAA) to allow appropriate access to patient information that is essential for providing whole-person care, we would like to thank you for holding many hearings on the opioid crisis and putting forth legislation to address this epidemic.

As you mark-up your opioid package, the undersigned organizations strongly urge you to add the Protecting Jessica Grubb’s Legacy Act, S. 1850, co-sponsored by Senators Shelley Moore Capito (RWV) and Joe Manchin (D-WV), to S. 2680, The Opioid Crisis Response Act of 2018. S. 1850 would  align Part 2 with HIPAA for the purposes of health care treatment, payment, and operations (TPO) and strengthen protections against the use of substance use disorder records in criminal proceedings. If S. 1850 is not added to S. 2680 we are missing an opportunity to ensure coordinated care for individuals with a substance use disorder (SUD) and to save lives. Without the changes envisioned by S. 1850 treating providers may not see the entire medical record of an individual with an addiction. This means that the individual may be prescribed an opioid to treat their pain without the provider knowing that the individual has a history of addiction; the end result could be relapse or worse yet, death.

Part 2 was enacted more than 20 years before HIPAA and 40 years prior to the utilization of electronic health care records. While different treatment of SUD records were important in the 1970’s, Congress went on to enact HIPAA in 1996, which allows for the sharing of medical records without an authorization for TPO. Ready access to treatment and efficient payment for health care are essential to the effective operation of our health care system. Additionally, certain health care operations, such as
administrative, financial, and quality improvement activities, are essential to support treatment and payment. HIPAA applies to every single illness, including other stigmatized diseases like mental health, HIV/AIDS, and SUD. However, because HIPAA sets the “floor” or minimum protections for health information, the overly-stringent restrictions imposed under Part 2 supersede HIPAA and prevent alignment with all other health care conditions.

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