This article addresses the federal laws and regulations governing the confidentiality and legal concerns that trauma centers and their patients face when substance abuse issues are identified and treatment interventions are put into place.
Gentilello LM, Samuels PN, Henningfield JE, Santora PB. Alcohol screening and intervention in trauma centers: confidentiality concerns and legal considerations. J Trauma. 2005;59(5):1250-1254; discussion 1254-1255.
Confidentiality in healthcare is an extremely hot topic and an issue of concern for all patients and healthcare providers, especially in regards to substance abuse screening and intervention. This article discusses the regulations regarding protective confidentiality rules that exist under federal law for substance abuse records and how to go about ensuring compliance of these regulations.
Old societal stigmas once placed on those with substance abuse problems have changed significantly over the past decade, so much so that most trauma surgeons now recognize that the acute trauma setting provides an excellent window of opportunity to address such problems and to change behavior. Despite the positive changes in the general public's views and attitudes toward substance abuse, trauma patients and their families continue to live with the fear of negative social stigmas placed on them once a substance abuse problem is recognized.
To make patient reporting of substance abuse problems less stigmatic for patients, the federal government has passed laws and regulations to ensure confidentiality of their medical records. These regulations are known as 42 CFR, Part 2, Confidentiality of Alcohol and Drug Abuse Patient Records, with the intent to increase self-reporting of substance abuse problems.
The authors discuss that trauma centers are exempt from following 42 CFR, Part 2, as follows: when alcohol and/or drug use information is required by the trauma surgeon to assist in "managing the patient's injuries," the information provided by the patient is not protected; however, if the information is obtained for screening purposes only, then it is protected under 42 CFR, Part 2. Consequently, if information is placed in a patient's medical record that is protected under 42 CFR Part 2, no one is allowed to view this information except "personnel having a need for the information in connection with their duties that arise out of the provision of diagnosis, treatment, or referral for treatment of alcohol or drug use."
Specific issues addressed include confidentiality with regard to alcohol and drug use information as it relates to the adolescent trauma patient, the pregnant trauma patient, the trauma patient who was driving while drunk, and health insurance coverage for these patients.
With regard to the adolescent trauma patient, under federal regulations, in all cases, minors must consent to disclosure of any information given to their parents or any other agency; this includes information related to substance abuse. This issue is discussed in great detail in the article.
Confidentiality and the pregnant trauma patient with substance abuse poses yet another dilemma with regard to confidentiality. The article discusses instances where federal legislation mandates state laws to override both 42 CFR, Part 2, and certain guidelines.
Confidentiality and the drunk driver who becomes a trauma patient present yet another set of confidentiality issues to their treating trauma surgeons with regard to the legal ramifications; however, to date, there are no set required reporting regulations by healthcare professionals to the legal system.
Finally, the authors discuss the Uniform Accident and Sickness Policy Provision Law, which a majority of states have adopted. This law allows insurance companies to deny payment for injuries obtained while a patient is under the influence of drugs or alcohol. This poses a unique moral and ethical dilemma for trauma surgeons, who may decide to withhold serum and urine testing for alcohol and drug levels to ensure proper payment for their services.
With the onslaught of trauma centers instituting protocols to screen for substance abuse in their trauma patients, compliance with the laws and regulations discussed in this article will continue to be a challenge. The article states some recommendations to ensure confidentiality, including creating a separate chart or "locked file" that is designated as confidential that only the substance abuse treatment staff has access to.
This article may be useful for healthcare providers who come across substance-abuse-related confidentiality issues in their trauma patients because it provides guidance regarding federal confidentiality rules and regulations that they will need to abide by. With the new requirements set forth by the American College of Surgeons, Committee on Trauma requiring that level I and level II trauma centers have a mechanism to identify problem drinkers and, in addition, that level I centers have the capability to provide brief interventions for screen-positive patients, confidentiality concerns are on the rise.
It is important for clinicians to keep in mind two details discussed in this article. First, there are also complicated loopholes that can make the laws very confusing, some of which allow for third parties, such as insurance companies, to obtain records, even those covered under 42 CFR, Part 2. This article provides both the help needed to guide the clinician and protect patients' confidentiality to the best ability possible. Second, there are many state-mandated laws and regulations that conflict with the federal regulations. Therefore, I recommend investigating both federal and state regulatory bodies, as well as discussing this with the legal department and/or risk management department in your own facility.
by Kathryn Schroeter, PhD, RN, CNOR Editor-in-Chief
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