On December 14, 2020, the Substance Abuse and Mental Health Services Administration ("SAMHSA") published a final rule amending the Confidentiality of Substance Use Disorder Patient Records regulations at 42 CFR part 2 ("Part 2"), effective January 13, 2021 ("Final Rule"). This Final Rule clarifies when a court can authorize disclosures of confidential communications made by a patient to a substance use disorder program subject to Part 2 ("Part 2 Program") to investigate or prosecute extremely serious crimes. Through this Final Rule, SAMHSA is addressing what it describes as an "inadvertent error" that arose from updates to Part 2 made in the 2017 Final Rule.
Original Language in 2017 Final Rule
As finalized by the 2017 Final Rule, a court order may authorize disclosure of confidential communications made by a patient to a Part 2 program in the course of diagnosis, treatment or referral for treatment only if:
- The disclosure is necessary to protect against an existing threat to life or of serious bodily injury, including circumstances which constitute suspected child abuse and neglect and verbal threats against third parties;
- The disclosure is necessary in connection with investigation or prosecution of an extremely serious crime allegedly committed by the patient, such as one which directly threatens loss of life or serious bodily injury, including homicide, rape, kidnapping, armed robbery, assault with a deadly weapon or child abuse and neglect; or
- The disclosure is in connection with litigation or an administrative proceeding in which the patient offers testimony or other evidence pertaining to the content of the confidential communications.
SAMHSA stated the "allegedly committed by the patient" language, which limited the disclosures permitted for investigation or prosecution purposes to only those related to extremely serious crimes allegedly committed by the patient, was made in error under the 2017 Final Rule.
New Language in Final Rule
With this new change, the "allegedly committed by the patient" qualifying language is removed from the Part 2 regulations, and a court may permit a Part 2 Program to disclose confidential communications when the disclosure is necessary in connection with the investigation or prosecution of an extremely serious crime, including crimes that directly threaten loss of life or serious bodily injury, which now includes not only crimes allegedly committed by the patient, but also crimes committed by anyone else.
In issuing this Final Rule, SAMHSA emphasized that the removal of barriers to law enforcement activities and investigations into issues such as "rogue doctors" and "pill mills" is important in light of the opioid epidemic in the United States of America. Addressing concerns that this clarification jeopardizes the treatment of patients, where patients could inadvertently incriminate themselves, SAMHSA also pointed out that Part 2 is not an "absolute shield for a patient's criminal activity" and that with a court order granted after an application showing good cause (which could include a substantial risk of death or serious bodily harm), a patient's records could be used to investigate or prosecute a patient. When considering concerns about the impact this change may have on marginalized communities, SAMHSA indicated that courts presumably will consider the impact of court orders on patients, before deciding to issue an order authorizing a disclosure.
In light of this Final Rule, Part 2 Programs and other lawful holders of Part 2 records must update their policies and procedures governing disclosures based on court orders.
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