Lobbyists Say Bill Easing Privacy Protections for Addiction Records May Be Moving Ahead

As the House Energy and Commerce Committee is considering more than two dozen bills as part of a bipartisan push to bring a legislative package on opioid addiction to the House floor by Memorial Day, two lobbyists said a controversial measure that would loosen privacy protections for substance abuse records could be included.

The bill, H.R.3545, would relax 42 CFR Part 2, a statute that dates back to 1970, which requires a patient to give special, written consent to share substance use disorder records with physicians and hospitals.

Though the legislation has some bipartisan support in the House, it’s been stalled amid criticism from lawmakers who oppose allowing substance abuse records to be shared without patient consent.

But one advocate who is lobbying for the measure said he has gotten word from committee aides that the measure will be taken up by the committee.

Corey Waller, chair of the Legislative Advocacy Committee for the American Society of Addiction Medicine, which supports the bill, said committee aides told him earlier this week that they intend to include the measure in the package.

"'We fully intend to have this be a part of the finished bill that comes out of committee,’ is kind of what” committee aides have said, Waller said in a Wednesday phone interview. “You can read into each of those words if you want."

Andrew Sperling, director of legislative advocacy at the National Alliance on Mental Illness, said in a Wednesday email that he was “cautiously optimistic” about the bill’s chances of moving forward.

When asked whether H.R. 3545 would be included in the larger package on opioid addiction-related legislation, the office of committee Chairman Greg Walden (R-Ore.) was noncommittal, with an aide saying that the measure is in the mix of bills to be marked up in the near future. Walden has called discussion on the issue “important” in addressing the opioid crisis, which has been fueled in part by the overprescribing of the powerful painkillers.

Rep. Frank Pallone Jr. of New Jersey, the top committee Democrat, would oppose the measure if it were put to a vote, according to a Democratic committee aide. Pallone has not committed to opposing the entire opioid package if the bill is taken up, according to the aide.

It is unclear at this point whether the opioid bills will be voted on by the committee separately or as part of a broader package to combat opioid addiction.

Rep. Markwayne Mullin (R-Okla.), who became the bill’s lead sponsor after Rep. Tim Murphy (R-Pa.) resigned amid a scandal last year, did not respond to requests for comment.

The measure has 19 Republican and 12 Democratic co-sponsors, and the backing of the Trump administration. A broad coalition of mental health, provider and insurance groups is also lobbying for the legislation. Supporters argue that if hospitals and doctors don’t have critical information about a patient’s history of drug or alcohol abuse, it can result in misdiagnosis and harmful medical interactions for the patient.

“Current policies are simply not compatible with the way health care is delivered today,” Rep. Earl Blumenauer (D-Ore.), the bill’s lead Democratic sponsor, said by email Tuesday. “Health care providers need access to a patient’s full medical record, including substance use treatment records, to have the information necessary to address a patient’s health needs.”

But other Democrats and substance abuse treatment experts oppose the measure over concerns that the weakening of privacy protections could dissuade patients who have substance use problems from seeking treatment over fear of being stigmatized. They argue that the Substance Abuse and Mental Health Services Administration has already taken appropriate regulatory action to modernize the Part 2 regulations amid the rise of electronic health records.

“There is a lot of information in substance use disorder treatment records that would be very harmful to the patient if it could get out,” Paul Samuels, director and president of the nonprofit Legal Action Center, a law firm that opposes the legislation, said Wednesday in a phone interview.

To address those privacy concerns, the measure was amended after Murphy resigned from Congress to limit the sharing of substance use records between doctors and hospitals only for treatment purposes, and not for payment and other reasons. The amended bill also has discrimination protections and enhances penalties for unlawful disclosure of records.

But the changes have not appeared to win over some opponents, such as Pallone, who said at a March 21 hearing that he didn’t think the amended version “cures the issue of the risk of stigma” for patients.