As previously reported, the Department of Health is moving forward with the proposed drug and alcohol (D&A) confidentiality regulation changes – 4 PA Code 255.5. These proposed regulation changes were published in the December 15 Pennsylvania Bulletin. The proposed regulation is available at www.pabulletin.com/secure/data/vol37/37-50/37_50_prm.pdf (pages 6-11). There is a 30 day comment period. The initial intent was to rescind Section 255.5. PCPA submitted comments on March 23 in support of a rescission. However, the final decision was that an amendment to the regulation would be more effective to accomplish the identified goals.
PCPA has advocated for change in Section 255.5(b) for over a decade. The majority PCPA members’ primary concerns include the following:
1. The current regulations do not allow the provider to share information outside the realm of the "five elements." The 255.5(b) regulations make it difficult to get appropriate approvals/authorizations from insurance companies and managed care organizations for higher levels of care, continued care, and appropriate medications even with client support and informed consent. The information most often needed included co-occurring issues, vital signs, and the medications the client was taking. Providers have been put “between a rock and a hard place” – either share what needs to be shared (with the client’s consent) to get the needed services approved and risk citation by licensing or not share the information and have services denied.
2. The current regulations also make it difficult to work with other important partners in the client’s recovery process such as the child welfare system, the Social Security Administration, and the criminal justice system, particularly probation and parole. The current regulations have made it difficult for providers to work in partnership with other important entities to increase the potential for treatment success. Even sharing positive, supported information has been prohibited.
These primary issues are addressed by the proposed changes which expand the amount of drug and alcohol treatment information that may be disclosed to third party payers, while still restricting the release of personal information. The changes also open up, with the clients consent, the ability to work with other important partners.
However, the changes do not have any impact on the desire to have a common treatment plan across mental health and D&A programs. It does not allow program staff in both sets of programs to have access to the various documents generated by their program consistent with HIPAA Minimal Necessary/need to know provisions. Drug and Alcohol Licensing has reported that 42 CFR regulations prohibit this access to electronic consumer health records and requires special firewalls. If a client is receiving co-occurring services the information is able to be shared, but the records of clients in the D&A program must be kept “separate” from other programs and protected by firewalls. PCPA is researching the 42 CFR regulations and Pennsylvania licensing interpretations.
All PCPA members are encouraged to review the proposed regulations with special attention to Title 4 Part XI 255.5 c – Consensual release of patient records and information. Members are also encouraged to write letters to the Department of Health regarding these proposed changes. There is some lobbying to prevent any change from going forward. Questions may be directed to Lynn Cooper at PCPA.
