Federal Protection of Substance Abuse Treatment Records

The confidentiality of certain alcohol and drug abuse treatment records is subject to more stringent federal protection than is afforded other health information under HIPAA. The stricter regulatory scheme reflects the particularly sensitive nature of records relating to substance abuse treatment. These records are protected under 42 CFR Part 2, which are frequently referred to as the Part 2 Rules.21 This means that, with respect to this type of data, the Part 2 Rules apply.

Types of Organizations Covered by Part 2 Rules

The Part 2 Rules are applicable to “alcohol and drug abuse patient records which are maintained in connection with the performance of any federally assisted alcohol and drug abuse program.” A “program” is any person or entity that holds itself out as providing, and actually provides, alcohol or drug abuse diagnosis, treatment, or referral for treatment. A general medical facility is not a “program,” except for an identified alcohol or drug abuse unit therein. A program is federally assisted if:

  • ? It is conducted by a federal agency or department.
  • ? It is carried out under a federal license or certification, including but not limited to (a) Medicare provider status; (b) methadone maintenance authorization; or (c) registration to dispense controlled substances.
  • ? It is supported by funds from a federal department or agency. Support includes general federal funding not linked to the program or federal revenue-sharing funds provided to state governments.
  • ? It has been granted a tax exemption by the IRS.

The regulations do not apply to the following: (i) records of the Veterans Administration; (ii) certain records of the armed forces; (iii) the exchange of information by personnel within a program or between a program and its controlling entity; (iv) disclosures to law enforcement officials in connection with the commission of a crime by the patient on the program’s premises; and (v) reports of suspected child abuse or neglect pursuant to state law.22

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