HHS Final Rule Concerning Confidentiality of Substance Use Disorder Patient Records Adopted; CARES Act Changes to Follow

In August 2019, the Department of Health and Human Services (“HHS”) proposed a new rule that would amend provisions of 42 CFR Part 2 governing the confidentiality of substance use disorder patient records. Shortly thereafter, Mellette PC published a Client Advisory on the proposed rules. Last week, on July 15, 2020, HHS published the final rule on the proposed changes to 42 CFR Part 2. The final rule largely adopted the provisions of the proposed rule so please refer to the Client Advisory on the proposed rule linked above for information on the key provisions of this new final rule that are effective on August 14, 2020.

However, there is one major caveat in the final rule. In March 2020 in response to the COVID-19 pandemic, the Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”) became law. The CARES Act substantially amended several portions of the 42 CFR Part 2 authorizing statute providing patients and health care providers more flexibility in sharing substance use disorder records. These changes will go into effect on March 27, 2021. The CARES Act requires HHS to update the regulations to implement these new statutory changes. Therefore, HHS intends to undertake subsequent rulemaking action based on the CARES Act in the imminent future. This rulemaking action may modify several of the provisions that are amended by this final rule. Stakeholders should be on the lookout for this subsequent rulemaking.

If you or your practice have any questions about this new final rule, please contact Peter Mellette, Harrison Gibbs, Elizabeth Dahl Coleman, or Scott Daisley at Mellette PC.

This client alert is for general educational purposes only. It is not intended to provide legal advice specific to any situation you may have and the linked Client Advisory does not cover all provisions of the proposed and final rules. Individuals desiring legal advice should consult legal counsel for up-to-date and fact-specific advice.