Final Rule Clarifies When Substance Abuse Programs Can Disclose Patient Information

by Pepper Hamilton LLP

Pepper Hamilton LLP

A final rule from the Substance Abuse and Mental Health Services Administration establishes requirements for the exchange of patient information between substance abuse treatment programs and their agents and contractors. Published on January 3, the rule clarifies requirements for re-disclosure of confidential patient information by certain contractors and agents of substance abuse treatment programs under the Confidentiality of Alcohol and Drug Abuse Patient Records regulations (commonly referred to as “Part 2”). The rule permits re-disclosure of confidential patient information by lawful holders without patient consent, and sets the parameters for this re-disclosure.

Before the final rule, re-disclosures of patients’ identifying information without written consent were prohibited absent a specific exception. However, the regulations were unclear as to how lawful holders (i.e., individuals or entities who receive patients’ identifying information by virtue of a written consent) could lawfully disclose this information to their contractors, subcontractors and legal representatives for payment and/or health care operation activities. The rule clarifies the restrictions on re-disclosure and permits a lawful holder to further disclose information to its contractors, subcontractors or legal representatives in order to carry out its payment and health care operation obligations on the lawful holder’s behalf. The preamble to the final rule contains a list of activities that fall under payment or health care operations, for example billing, auditing, licensing and business planning. The agency did not include this list in the text of the regulations, which indicates some flexibility as to which activities qualify.

Although re-disclosure is permitted for payment and health care operation purposes, it not permitted for purposes of diagnosis, treatment or referral. Disclosures are still restricted to the minimum amount necessary and must be in furtherance of the disclosed purpose set forth on the original patient consent. Disclosures must be accompanied by a notice prohibiting re-disclosure as previously required by Part 2. In an effort to make this notice requirement compatible with electronic medical record systems, the final rule provides the option of an abbreviated notice as opposed to the lengthy paragraph previously required. The abbreviated notice need only state that “42 CFR part 2 prohibits unauthorized disclosure of these records.”

Lawful holders must have a written contract with the contractor or legal representative to whom they want to disclose the information. The contract must require that the recipient adhere to Part 2, implement appropriate safeguards, and report any unauthorized uses, disclosures or breaches to the lawful holder. The recipient may not further re-disclose any information to a third party unless that party is a contract agent helping the contractor or subcontractor provide the services to the lawful holder and the information received by the third party is only further disclosed back to the lawful holder or the Part 2 program.

The final rule provides certainty that necessary disclosures by lawful holders for payment and health care operation purposes will not be deemed a violation of Part 2 if the disclosures meet the requirements of the rule. Substance abuse treatment programs and their agents and contractors should reevaluate their procedures for disclosure of patient information in light of the final rule and should consult with counsel to ensure the appropriate consents, contracts and safeguards are in place.

Written by:

Pepper Hamilton LLP

Pepper Hamilton LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.