WilmerHale Partner Kirk Nahra, with Nicolas Terry and Melissa Goldstein, discusses the existing state of health privacy rules applicable to the medical records of substance use disorder patients, the current COVID-19 emergency provisions that create exceptions to those rules and the statutory changes contained in the CARES Act of 2020.
Excerpt: This post describes the existing state of health privacy rules applicable to the medical records of substance use disorder (SUD) patients, the current COVID-19 emergency provisions that create exceptions to those rules, and the statutory changes contained in the CARES Act of 2020. The array of announcements of waivers and enforcement discretion detailed below that apply for the duration of the declared national emergency are relatively uncontroversial.
More surprising is that Congress has taken the opportunity to settle, without public debate and in a “must-pass” piece of legislation otherwise focused on COVID-19, a longstanding dispute about the value of special protections for the privacy of SUD patients in the context of existing health care industry practice. While some advocates for the privacy of SUD treatment records may be concerned about how Congress resolved this debate, they should remember that we now have privacy protections for all health care information that were not present when the special protections for SUD treatment information were enacted. Moreover, the SUD-specific privacy protections were rarely enforced, so the effect on SUD patients and their health care information will depend crucially on how vigorously regulators make use of new enforcement tools Congress gave them in the CARES Act.
