Q&A: Referral appointments to 42 CFR Part 2 programs
Q: I work for a behavioral health recovery center, and many of our programs fall under 42 CFR Part 2, as we provide substance use services. Suppose a referring agency follows up to ask if a client has scheduled an appointment or gone to an appointment with us, and there is no release on file because (a) the referring agency has not sent or secured one; (b) the patient did not attend the appointment; or (c) the patient did not make the recommended appointment. Can we confirm either that the patient has made an appointment or that no engagement with us has occurred? It has been suggested to me that because the patient has not engaged our services yet, and because we are not a treatment agency, we could offer this information. Do referral appointments like this fall under PHI?
A: 42 CFR Part 2 is a federal law governing confidentiality for people seeking treatment for substance use disorders from federally assisted programs. These regulations were first promulgated in 1975 and substantially updated in 1987. A new final rule became effective on March 21, 2017. The new statute is called “Confidentiality of Alcohol and Drug Abuse Patient Records, 42 Code of Federal Regulations (CFR) 2.” The focus of the update was to facilitate information exchange within new healthcare models, such as health information exchanges.
The new rule does not appear to waive the need to obtain patient consent for disclosures, with the following limited exceptions:
- Medical emergencies (when the Part 2 program or healthcare provider believes there is an immediate threat to the health or safety of an individual)
- Scientific research
- Audits and evaluations
- Child abuse reporting
- Crimes on program premises or against program personnel
- Court order
- Communications with a qualified service organization (QSO) of information needed by the organization to provide services to the program
If you do not have a written patient consent on file, simply tell the referring agency that you will need a written consent to disclose the requested information. The referring agency can obtain written consent from the patient during his or her next appointment, if it continues to provide services to the patient.
Editor’s note: Question answered by Mary Brandt, MBA, RHIA, CHE, CHPS. Brandt is a healthcare consultant specializing in healthcare regulatory compliance and operations improvement. She is also an advisory board member for BOH. This information does not constitute legal advice. Consult legal counsel for answers to specific privacy and security questions. Opinions expressed are those of the author and do not represent HCPro or ACDIS. Need expert advice? Email your questions for consideration in the Revenue Cycle Daily Advisor. Note: We do not guarantee that all questions will be answered.