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#SubHealth Reviews Outdated Law that Impedes Patient Care and Safety


WASHINGTON, DC – The Health Subcommittee, chaired by Rep. Michael C. Burgess, M.D. (R-TX), today held a hearing examining a discussion draft of the Overdose Prevention and Patient Safety Act, authored by Reps. Markwayne Mullin (R-OK) and Earl Blumenauer (D-OR).

This legislation would permit substance use disorder (SUD) treatment records, currently governed under 42 CFR Part 2 (often called “Part 2”) to be shared in accordance with the Health Insurance Portability and Accountability Act (HIPAA), the federal law protecting privacy and confidentiality of medical records. The bill would also increase the penalties in the event of disclosure, add breach notification requirements, and provide discrimination prohibitions to protect people seeking and receiving SUD treatment.

“When Part 2 was created, electronic health records didn’t exist. Integrated care didn’t exist. Comprehensive mental health treatment didn’t exist,” said Rep. Mullin. “We now live in an era where our physicians treat the whole patient and not just the symptom. Without Part 2 alignment, we are going to continue to stigmatize and segregate patients with substance use disorder.”

Witnesses part of the second panel deliver their opening statements

In his opening statement, #SubHealth Chairman Burgess said, “As a physician, I believe that it is vital that when making clinical decisions, I have all of the appropriate information to make the correct determination in the treatment of a patient. Those suffering from substance use disorder should receive the same level of treatment and care as other individuals. Patients afflicted with substance use disorder deserve to be treated by physicians who are armed with all of the necessary information to provide the best care. I certainly do understand and respect that patient privacy protection is paramount and should be held to the highest regard. The Overdose Prevention and Patient Safety Act maintains the original intent of the 1970s statute behind 42 CFR Part 2 by protecting patients and improving care coordination. In fact, Mr. Mullin’s bill increases protections for those seeking treatment by more severely penalizing those who share patient data than under the current statute.”

#FullCmte Chairman Greg Walden (R-OR) reiterated the importance of the improvements to the bill, stating, “The legislation also includes strong penalties and discrimination prohibitions in statute to protect people seeking and receiving substance use disorder treatment. I have heard from providers in Oregon, from hospitals to health centers to addiction specialists, who believe these changes are critical to their improving treatment of substance use disorder.”

#SubHealth members heard from two panels. The first panel was composed of Rep. Blumenauer, the bill’s Democrat cosponsor. The second panel featured stakeholders, including patients in long-term recovery and those who have lost a loved one due to SUD or opioid use disorder (OUD).

Rep. Blumenauer delivers his testimony

In his testimony to #SubHealth, Rep. Blumenauer stated, “Simply put, an antiquated law prevents lifesaving medical care for patients in recovery for substance use disorders. Originally designed to protect the privacy of individuals in addiction treatment, this decades-old barrier now creates an impediment to delivery of integrated medical care.”

Mr. Dustin James McKee, Director of Policy, National Alliance on Mental Illness of Ohio, shared the story of his older brother, Brandon. The father of three sons, Brandon passed away from a fatal opioid overdose in 2014 at the age of 36.

“Brandon’s death was preventable,” explained Mr. McKee. “However, in part because of the antiquated provisions contained within 42 CFR Part 2, the medical professionals that prescribed him opiate based pain medications were not able to identify him as a high-risk individual with a history of substance use disorders, substance use treatment, and countless relapses.”

Like other common tales of addiction, for Brandon, it all started with an accident. For Brandon, it was at the age of 17 when he was attempting a trick on his skateboard and ultimately dislocated his shoulder. Mr. McKee recalled, “His ex-wife recalls him frequently saying that the opiate-based pain medication he was given intravenously in the emergency department gave him the best sensation that he had ever experienced in his life. It seems as though that incident was the beginning of a long and ultimately unsuccessful battle with substance use and addiction.”

Mr. McKee responds to a member’s question

Mr. Jeremiah Gardner, Manager, Public Affairs and Advocacy, Hazelden Betty Ford Foundation, who is in long-term recovery, shared his own experience with Part 2 and how it made him feel as a patient seeking help.

“What sort of message do you think I internalized when I was asked to sign multiple consents at multiple times during my care? It wasn’t that my provider or the system cared deeply about me or was trying to protect me. Instead, I was getting the subtle, stigmatizing message that my illness may demand extraordinary secrecy,” explained Mr. Gardner. “Before, I hadn’t been under the impression that I needed to or could keep my treatment a secret. In fact, getting help had seemed like a good thing.”

In speaking in support of the discussion draft, Mr. Gardner said it would, “be a key step in giving those with opioid use disorder greater access to the lifesaving health care they need. … Part 2 regulations, enacted in the 1970s, are applied neither fairly nor uniformly, applying only to a small subset of addiction treatment providers. They have never been enforced and actually perpetuate the very stigma that causes discrimination, rather than providing any real extra protection against it. By aligning Part 2 with the Health Insurance Portability and Accountability Act (‘HIPAA’) for ‘treatment,’ ‘payment,’ and ‘operations’ purposes – thus allowing the use and disclosure of patient information when needed to facilitate optimal care and protect patient safety – H.R. 3545 will continue Congress’s effort to bring much-needed parity between care for addiction and care for physical health conditions.”

Mr. Gardner went so far as to address concerns about reforming the statute, saying, “Yes, discrimination happens, and we must prosecute it to the full extent of the law. But if we want to take that next step as a culture, and create an environment that produces less discrimination and addresses addiction more openly, we have to change the laws and institutions that unintentionally validate stigma. We cannot fight discrimination with stigma.”

Today’s hearing follows three dedicated legislative hearings to examine the opioid crisis and possible legislative solutions. In February, #SubHealth reviewed eight bills pertaining to the Controlled Substances Act that will improve patient safety and bolster enforcement tools. In March, #SubHealth held a rare two-day hearing examining 25 prevention and public health solutions (read a recap of day one here and a recap of day two here). And in April, #SubHealth examined legislation to address coverage and payment issues within Medicare and Medicaid.

During #SubHealth’s two-day hearing focused on prevention and public health solutions, both committee members and witnesses spoke in support of H.R. 3545.

The Majority Memorandum, witness list, and witness testimony for the hearing will be available here as they are posted.