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An Analysis on HIPAA and 42 C.F.R. Part 2

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An Analysis on HIPAA and 42 C.F.R. Part 2

Drug and alcohol patients are protected by State and Federal laws in terms of the privacy of their documents and health records. The Health Insurance Portability and Accountability (HIPAA) and the 42 C.F.R. Part 2 are the two Federal laws that govern such privacy. This paper aims to present the primary differences of these two laws: the strict and loose prohibitions, how these laws affect mental health professionals, law enforcement, court officials, and how these effects can be aIDressed through research studies.

The primary differences of HIPAA and 42 C.F.R. Part 2 is that, in HIPAA, the patient may obtain information so long as he/she is guided and his/her questions will be answered by a physician (deWit and O’Neill, 2014). On the other hand, 42 C.F.R. prohibits this, making it the decision of the program on whether or not the patient may access his/her information (SAMHSA, n.d). Moreover, HIPAA allows personal agents, such as an executor, to obtain information about a patient (California Hospital Association [CHA], 2011); however, 42 C.F.R. only allows such actions when a court order can be presented (SAMHSA, n.d). Another difference is that HIPAA applies aIDitional administrative safeguards for the protection of the patient while 42 C.F.R. does not use these safeguards. Lastly, HIPAA allows the disclosure of the records of the patient to other programs without the authorization of the patient, and the law also allows that the records of the patient be released to public health entities in cases of preventing diseases. However, in case of 42 C.F.R. the release of the records of the patient to healthcare providers can only be carried out when immediate medical events arise and public health entities may only obtain records of the patient once a court order has been released (CHA, 2011; SAMHSA, n.d.).

In discussing the primary differences of the two Federal laws, it can be inferred that the 42 C.F.R. Part 2 is strict in the aspect of allowing the patient to obtain his or her personal information. AIDitionally, 42 C.F.R. Part 2 also poses a strict prohibition in terms of patient information even if public health is concerned in the ordeal (SAMHSA, n.d.). On the other hand, the HIPAA does have some slightly loose prohibitions. One of this is that it has the discretion to share information of the patient to other programs and healthcare entities even if it is not authorized by the patient. In most cases, most of the slightly loose prohibitions of HIPAA are regarding the collection of the data of the patient by a representative and public health entities and individuals (CHA, 2011).

On the other hand, these privacy and confidentiality laws interfere with mental health professionals as it hinders the professionals to communicate with one another about the treatment of a patient (Committee on Crossing the Quality Chasm: Adaptation to Mental Health and AIDictive Disorder, 2006). In line with law the enforcement, there are instances that these privacy and confidentiality laws hinder them from acquiring vital information for an investigation. Therefore, the investigation process can be compromised due to these laws (McCallister, Grance, and Scarfone, 2010). For court officials, they have a tough from these confidentiality laws when getting into a verdict for a trial that involves a person who is protected under these laws. This is because these withheld information can affect the decision making process of the court officials (Bonnie, Johnson, Chemers, Schuck, 2013).

As these privacy and confidentiality laws affect mental health professionals, law enforcers, and court officials, researchers have concluded that these laws defeat its purpose in protecting the patient.  There have been suggestions lobbied by researchers and healthcare professionals in order to minimize the negative effects of privacy to patients. One of these suggestions is to allow access to the information of the patient with the notion that the data will only be used for purposes where it is deemed necessary (Herring, 2012).

Conclusively, HIPAA and 42 C.F.R. Part 2 are privacy laws that have both positive and negative aspects. With these laws, patients are given the security to be private of their mental health problems without being stigmatized by the community. Nonetheless, as observed, there are also limitations that these laws create in the field of mental healthcare and law enforcement.

References

Bonnie, R. J., Johnson, R. L., Chemers, B. M., & Schuck, J. (Eds.). (2013). Reforming Juvenile

Justice: A Developmental Approach. Washington, D.C.: The National Academic Press.

California Hospital Associations. (2011). Mental health law: A handbook on laws governing

mental health treatment. Scramento, C.A.: The Author.

Committee on Crossing the Quality Chasm: Adaptation to Mental Health and AIDictive

Disorders. (2006). Improving the Quality of Health Care for Mental and Sunstance-Use Conditions: Quality Chasm Series. Washington, D.C.: The National Academic Press.

dWit, S. C., & O’Neil, P. (2014). Fundamental concepts and skills for nursing. Philidelphia:

Saunders.

Herring, J. (2012). Medical law and ethics. 4^th ed. Oxford, UK: Oxford University Press.

McCallister, E., Grance, T., & Scarfone, K. (2010). Guide to protecting the confidentiality of

personally identifiable information. Gaithersburg, MD: Computer Security Division.

Substance Abuse and Mental Health Services Administration. (n.d.). Frequently asked questions:

Applying substance abuse confidentiality regulations to health information exchange (HIE). Washington, D.C.: U.S. Department of Health and Human Services.