AHIMA Celebrates Passage of Protecting Jessica Grubb’s Legacy Act provisions in CARES

AHIMA is celebrating a recent victory with our Part 2 advocacy efforts due to provisions included in the Coronavirus Aid, Relief, and Economic Security (CARES) Act.

As most HIM professionals are well aware, opioid misuse, abuse, and overdose have reached epidemic proportions in the US and have created a crisis in healthcare for patients, families, and the entire country. For more than 40 years a law around substance use disorder records has stood in the way of efforts to stem the tide of opioid misuse and prevent related adverse events. These regulations in 42 CFR Part 2 (or simply abbreviated as “Part 2”) includes requirements that limit the use and disclosure of patients’ substance use records from certain substance use treatment programs. These limitations run counter to new, innovative care delivery models that rely on clinicians’ ability to share health information effectively and safely to coordinate high-quality treatments that these patients need.

Recently, on March 27, 2020, Congress passed the (CARES) Act, a $2 trillion bill aimed at stimulating the economy and providing additional assistance to health professionals fighting COVID-19. Included in the bill was section 3221, the re-introduced Protecting Jessica Grubb’s Legacy Act, or “Legacy Act”, championed by Senators Shelley Moore Capito (R-WV) and Joe Manchin (D-WV). Passage of this act will now make it easier to share addiction records for the purposes of treatment, payment, and healthcare operations, (TPO) while allowing patients to remain in control; as well as providing new protections not previously afforded under 42 CFR Part 2, which was passed into law in the 1970s–well before HIPAA and electronic health records.

A summary of the “Legacy Act” as included in the CARES Act can be found here. Key provisions include:

• Consent: Requires an initial, affirmative, written consent from patients before their information may be used or disclosed by a covered entity, business associate, or program subject to Part 2 for the purposes of treatment, payment, and healthcare operations as permitted by HIPAA.
• Redisclosure: Once initial consent is obtained; part 2 information may be redisclosed in accordance with the HIPAA Privacy Rule until the patient revokes such consent in writing.
• Breach notification: Enforcement of a breach of part 2 information moves under Office for Civil Rights (OCR) in US Department of Health and Human Services (HHS) and penalties for breach will be assessed in accordance with HIPAA.
• Proceedings: Except when authorized by a court order or patient consent, part 2 records may not be disclosed or used in any civil, criminal, administrative, or legislative proceedings conducted by any Federal, State, or local authority.
• Anti-Discrimination: Expands existing patient protections to prevent discriminatory behavior towards patients suffering from a substance use disorder.

Passage of the Legacy Act furthers AHIMA’s vision of a “world where trusted information transforms health and healthcare by connecting people, systems, and ideas,” and also supports AHIMA’s advocacy priorities related to “access” by ensuring that patients will be able to easily share their health data with their healthcare providers if and when they want to share it. This success comes after many years of investment that AHIMA has made with the assistance of our members to help bring HIM’s voice to this and other important public policy issues that impact the HIM profession.

Lesley Kadlec (Lesley.Kadlec@ahima.org) is director, policy and state advocacy engagement at AHIMA.