You are absolutely correct that there is much in HIPAA than what is in 42 C.F.R. Part 2. Isn't it nice that SAMHSA et al are being so timely with their assistance? The Legal Action Center, a well-known, well-respected non-profit based in New York that has done a lot of work in interpreting 42 C.F.R. Part 2, is also supposed to be coming out with a "cross-walk" supplement, but if people are not already working on this, well ... If anyone is interested, I can give you contact information for the Legal Action Center.
Darrell Rishel, J.D. Director of Information Services Arapahoe House, Inc. This message is not legal advice or a binding signature. > -----Original Message----- > From: Vicki Hohner [mailto:[EMAIL PROTECTED]] > Sent: Wednesday, January 22, 2003 12:13 PM > To: Darrell Rishel; [EMAIL PROTECTED] > Subject: RE: HIPAA privacy and people - comparison to 42 C.F.R. Part 2 > (Alcohol and Drug Patient Privacy) > > > I have been doing a lot of work with substance abuse programs > and HIPAA, > and while not deeply familar with 42 CFR protections we have > identified > that there are limited areas of overlap with HIPAA privacy. > Many subject > to 42 CFR mistakenly believe that the fact that they comply with this > law, which is more stringent in its use and disclosure requirements, > means they are exempt from complying with HIPAA. However, note that > there are only a few overlaps between the two: primarily with uses and > disclosures/minimum necessary, authorizations, and some > limited parts of > individual rights. This leaves a lot more under HIPAA that is not > addressed in 42 CFR--all the policies and procedures, the privacy > officer, business associate terms, the notice of privacy > practices, and > accounting of disclosures, to name a few. Note also that the > definitions > of what information is protected is broader under HIPAA than under 42 > CFR. > > My understanding is that the feds (SAMHSA/CSAT) are working on a > comparison matrix between the two--no idea when that may be > available. > > Vicki Hohner > FOX Systems, Inc. > 360-970-6856 > 360-352-4584 > Information transmitted is confidential and may be proprietary to FOX > Systems, Inc. It is intended only for the person or entity > to which it > is addressed. Anyone else is prohibited from disclosing, copying, or > disseminating the contents or attachments. If you receive this in > error, please notify sender immediately, or us at www.foxsys.com and > delete from your system. > >>> Darrell Rishel <[EMAIL PROTECTED]> 01/20/03 08:57 AM >>> > Matt- > > I'll take a stab at answering your question. Please remember > that in an > effort to keep it relatively brief, this is a fairly simplistic, > high-level > overview. > > Under 42 C.F.R. Part 2 (which I'll refer to as the AOD (Alcohol and > Other > Drugs)regs), disclosure within a "program" is allowed on a > need-to-know > basis without the consent of the patient. This "internal" > disclosure is > limited to "personnel having a need for the information in connection > with > their duties which arise out of the provision of diagnosis, treatment, > or > referral for treatment." In practice, I think this is very > close to, if > not > the same as, the HIPAA "use" definition. Although the AOD regs do not > require a formal minimum necessary analysis, the concept of only > disclosing > the minimum amount of information necessary to accomplish the purpose > for > making the disclosure is clearly embedded in the regs. > > It is the disclosure to external entities where, especially with the > adoption of the August, 2002, HIPAA changes, a wide gap > remains between > the > two sets of regs. While HIPAA allows treatment providers to > disclose PHI > for > treatment and payment (even another provider's payment) without the > patient's written consent, the AOD regs absolutely prohibit such > disclosures > related to payment, and disclosures for treatment (except for medical > emergencies) require that a written agreement be in place and that the > services which the external provider render be something > different than > what > the primary provider is providing. This written agreement is known in > the > AOD regs as a Qualified Service Organization Agreement (QSOA, for > short). A > QSOA is akin to a BA agreement, though much shorter and less > complicated, > charachteristics which are, unfortunately, soon to be a thing of the > past. > While a QSOA can be used in limited circumstances for treatment (the > biggest > problem is that we cannot have one with another AOD > provider), its most > common use is for operations, just as the HIPAA BA agreement will be > used > (e.g., we have a QSOA with our auditor, or outside attorneys, the > company > which prints and sends out our bills, the lab which analyzes the urine > specimens we collect, etc.). But, if we want to be able to bill an > insurance > company or any other third party payer, we have to have the patient's > written consent (in fact, we cannot even call to get pre-authorization > without written consent; how's that for customer friendly?). > If we want > to > refer the patient to another health care provider, of > whatever type, or > consult with another provider (like their primary care > provider) who has > seen the patient, we must have the patient's written consent > unless the > situation fits within the pretty narrow exception where a QSOA can be > used > and we have (or can get) one in place (the logistics and pain > of trying > to > get a QSOA with all of those providers, which make doing so pretty > impracticle). The requirements in the AOD regs for a valid written > consent > are very similar to those for a HIPAA authorization: who is disclosing > the > information, to whom is the information being disclosed, what > information is > being disclosed and why is it being disclosed, there must be a > reasonble, > identifiable expiration date, the patient must be able to revoke the > consent > at any time (one specific exception here for persons referred by an > element > of the criminal justice system where treatment is a part of the > disposition), the name of the patient, the patient's signature and the > date > of the signature. > > The remaining situations where disclosure can be made without written > patient consent under the AOD regs are very limited. I'll list only a > few of > the major differences between the HIPAA and AOD regs. There is no > general > exception for "otherwise required by law." I've forgotten exactly when > the > exception for allowing a child abuse report to be filed if required by > state > law was added, sometime around 1990, I think, but that used > to be quite > a > problem and even now the exception is very limited. There are no > exceptions > for reporting any other kind of abuse. The HIPAA "law enforcement" > exception. There are provisions for disclosure in response to a court > order, > but it requires a very specific order after following very specific > procedures. > > I hope this has been helpful. Let me know if you have any other > questions. > > Darrell Rishel, J.D. > Director of Information Services > Arapahoe House, Inc. > > This message is not legal advice or a binding signature. > > > > > -----Original Message----- > > From: Matthew Rosenblum [mailto:[EMAIL PROTECTED]] > > Sent: Saturday, January 18, 2003 5:02 PM > > To: Darrell Rishel; 'WEDI SNIP Privacy Workgroup List' > > Subject: RE: HIPAA privacy and people > > > > > > Darrell, > > > > Thank you for sharing your thoughts. And now that you > > brought it up, how > > would you compare the "42 CFR" consent with the (voluntary) > > HIPAA-consent > > and the HIPAA-authorization. In my mind, the "42 CFR" allows a more > > generalized use and disclosure for TPO, and consequently is > > more equivalent > > to the (voluntary) HIPAA-consent, than it is to the more specific > > HIPAA-authorization. > > > > But, I would like to know your take on this matter. > > > > Thanks in advance. > > > > Matt > > > > Matthew Rosenblum > > Chief Operations Officer > > Privacy, Quality Management & Regulatory Affairs > > http://www.CPIdirections.com > > > > CPI Directions, Inc. > > 10 West 15th Street, Suite 1922 > > New York, NY 10011 > > > > (212) 675-6367 > > [EMAIL PROTECTED] > > > > CONFIDENTIALITY NOTICE: This E-Mail is intended only for the > > use of the > > individual or entity to which it is addressed and may contain > > information > > that is privileged, confidential and exempt from disclosure > > under applicable > > law. If you have received this communication in error, please do not > > distribute it. Please notify the sender by E-Mail at the > > address shown and > > delete the original message. Thank you. > > > > AVISO DEL CONFIDENCIALIDAD: Este email es solamente para el uso del > > individuo o la entidad a la cual se dirige y puede contener > > información > > privilegiada, confidencial y exenta de acceso bajo la ley > > aplicable. Si > > usted ha recibido esta comunicación por error, por favor no > > lo distribuya. > > Favor notificar al remitente del E-Mail a la dirección > > mostrada y elimine el > > mensaje original. Gracias. > > --- > The WEDI SNIP listserv to which you are subscribed is not > moderated. The > discussions on this listserv therefore represent the views of the > individual participants, and do not necessarily represent the views of > the WEDI Board of Directors nor WEDI SNIP. If you wish to receive an > official opinion, post your question to the WEDI SNIP Issues > Database at > http://snip.wedi.org/tracking/. These listservs should not > be used for > commercial marketing purposes or discussion of specific > vendor products > and services. They also are not intended to be used as a forum for > personal disagreements or unprofessional communication at any time. > > You are currently subscribed to wedi-privacy as: > [EMAIL PROTECTED] > To unsubscribe from this list, go to the Subscribe/Unsubscribe form at > http://subscribe.wedi.org or send a blank email to > [EMAIL PROTECTED] > If you need to unsubscribe but your current email address is not the > same as the address subscribed to the list, please use the > Subscribe/Unsubscribe form at http://subscribe.wedi.org > --- The WEDI SNIP listserv to which you are subscribed is not moderated. The discussions on this listserv therefore represent the views of the individual participants, and do not necessarily represent the views of the WEDI Board of Directors nor WEDI SNIP. 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