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NatCon16: Patient privacy is a balancing act

March 11, 2016
by Julia Brown, Associate Editor
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Experts agreed at NatCon 2016 that while it’s important to maintain patient privacy, sharing of patient information can often be important for ensuring family involvement and better coordination of care. To sum it up: Privacy in healthcare is a balancing act. 
In a general session called “Uncomfortable Conversations,” Joe Parks, medical director, National Council for Behavioral Health and Paul Samuels, director, Legal Action Center, discussed 42 CFR Part 2 and whether behavioral health and substance use disorder (SUD) patients should have to relinquish their rights to release their own healthcare privacy or retain control. 
“Diabetes specialists don’t get subpoenas for custody battles, and people with hypertension don’t usually have to worry about managed care companies getting ahold of records that could prevent them from keeping their job,” said Samuels. “A large percentage of behavioral health and SUD patients have criminal activity, and that’s a large aspect not present in other areas of healthcare.” 
The law says healthcare records cannot be used for persecution. 
“42 CFR takes away the right for people to release their own healthcare documents and, if they do, it’s time limited,” Parks said. “This is discrimination against the people we serve for not allowing them to do this.” 
He added that the issue stacks social and legal harm against clinical and mortal harm.
It’s important for the industry to do what it can with electronic healthcare records and integrated networks, Samuels said, by flowing records from substance use providers to benefit the patient. He gave kudos to the Substance Abuse and Mental Health Services Administration (SAMHSA) for its proposed regulations that make it easier for consents to be developed so data can be redisclosed and put into information exchanges. 
Parks added that while this is a step forward, it’s not enough. 
“The only thing it requires that is more strict than HIPAA is you can’t use records in court and can’t disclose without consent,” he said. “If these are time limited, will you have a tickler file to see if you want to extend that? I don’t think so. You won’t have the money or the people.” 
Behavioral health should be imbedded in the law, says Samuel, because there’s still a lot of discrimination and prejudice among providers – not just stigma. 
“It’s important to protect patients and respect their rights,” he added. “There’s an importance to making the consent process work; it doesn’t have to be limited in time, it can expire with the death of the patient—I think that’s probably long enough.” 
Parks added that 42 CFR actually decreases access to care and is counter to the message that treatment works.
“It’s a cultural competency issue,” he said. “People don’t think our treatments work because we hide our successes.” 
Bottom line, Samuel said, is that the industry needs to do a much better job with connecting systems and educating  substance use disorder patients about when they should disclose and that they can offer consent for it. He advises that the propsed SAMHSA regulations should be finalized and enforced along with parity and the Affordable Care Act.