A proposed rule to expand law enforcement access to addiction treatment records lacks my support

Stefan Kertesz, MD, MSc
4 min readSep 24, 2019

The United States Substance Abuse and Mental Health Services Administration proposed, on August 25, a change to federal rules that govern how and when law enforcement agencies can seek and obtain a court order to examine medical records from historically protected addiction treatment programs. This rule change is distinct from a separate proposed rule change, offered at the same time, that would allow integration of addiction treatment information, prescription monotoring program data and standard medical records. This more general rule is open for comment until October 25, 2019. I will not address it here.

However, the rule focused on expanding law enforcement access to records from addiction treatment programs is a matter of urgency, and it not one I support.

The rule change has already drawn serious statments of concern from many professional organizations focused on addiction treatment, as reported here.

I submitted my comment to the federal docket, shown below, and I invite you to submit your own by 11:59 eastern time on September 25, 2019.

As an addiction medicine professional and scholar, I request that your agency decline a proposed change to the rule on Confidentiality of Substance Use Disorder Patient Records seeking to expand law enforcement access records of patients in legally protected addiction treatment programs (RIN 0930–AA30)

The proposed rule assures an extremely high level of access to records of persons who have sought addiction care. It is phrased in a way that it will likely discourage patients from seeking addiction treatment and discourage clinicians from offering it. Further, this rule is not supported by current data regarding our present crisis of overdose, and so it seems less than fully justified.

A recent summary by addiction journalist Alison Knopf sums up the text of the proposed rule. As she wrote on August 25, the rule:

“proposes to allow law enforcement to have access to all patient records if it is investigating an alleged serious crime committed by a patient⁠ — or by a person known to the patient. It would also change the definition of “serious crime” to include “drug trafficking” — with the potential to be interpreted as anything related to drugs”

What draws my concern are two things, each of which creates the path for abrogations of clinical privacy in ways that could harm patients.

1. The expansion in scope to encompass all persons who might know a patient is reflected by the rule’s stipulation that it would assure access even if a crime “was not allegedly committed by the patient”. This puts a large number of legally protected records at risk in a way that violates the beneficial impacts of confidentiality in addiction care. Put more simply, under this rule, law enforcement could declare interest, based on a newly-expanded list of allegations (see item 2 below), in anyone who might have a social, clinical or criminal association with a patient who has sought addiction treatment in a 42 CFR Part 2-protected treatment program.

Based on that interest, law enforcement could gain court orders to seize a patient’s records, and potentially records of all other patients who might be imagined to have some association with that person, including records pertinent to the clinicians who take care of them, and other patients who attend the same clinic.

Further, based on language in the notice, it appears the modified rule will permit law enforcement to examine otherwise protected and confidential patient records from treatment programs in order to investigate persons who are neither patients nor clinicians at those programs.

As I read the proposed rule, it seems possible that police could gain access to records after merely producing an allegation regarding a third party outside of the 42 CFR Part 2-protected program if they can further provide some basis to believe that third party “could” have some relationship to patients in that program. That creates a very wide channel for police to explore sensitive health records that we have historically sought to protect.

2. The proposed change also expands the alleged grounds on which law enforcement agencies may examine historically protected records. The expansion would include investigation of a drug-related crime committed by a patient or, based on item 1 above, someone associated with that patient.

Where the proposed order expands the remit of the expression “extremely serious crime” to apply to “drug trafficking”, then in the context of a Part 2 protected program, it seems to open the door to law enforcement examining clinical treatment records based on a general concern to learn about any number of misdeeds related to drugs, ranging from drug dealers external to such programs, to patients who may indeed confess wrong-doing in the course of clinical care.

Lastly, I note that the proposed rule is not justified by current overdose data which — if considered fairly — fails to support a new level of police access to addiction treatment records.

According to the National Center for Health Statistics, opioid overdose deaths, as of 2018, consist mostly of deaths involving illicit drugs: heroin and illicitly-manufactured fentanyl. The two opioid agonists used in addiction treatment (methadone and buprenorphine) do not play a major role. Methadone was present in 3194 of the 47,600 opioid-related deaths of 2017. Such methadone-related deaths have been in decline since 2006. Buprenorphine is a minimal contributor to overdose owing to its unique properties as a partial agonist.

The extraordinary rise in overdose we face today does not seem to be linked to addiction treatment programs run amok. It should compel new attention to encouraging addiction treatment, and avoidance of any action, such as the proposed regulation, that could dissuade patients from seeking care or clinicians from offering it.

Stefan G Kertesz, MD
Professor, University of Alabama at Birmingham School of Medicine

Views are my own, and do not represent positions of the United States Government

(Note: “of” was added to this post after submission of the comment, correcting a typo)

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Stefan Kertesz, MD, MSc

I am a primary care doctor and researcher at University of Alabama at Birmingham who focuses on how to deliver high quality care for vulnerable populations.