Sharing Information on Plan Members With Opioid Use Disorder

Health Highlights

Editor’s Note: People eligible for both Medicare and Medicaid experience co-occurring substance use disorders (SUDs) and chronic pain at rates that are two to six times higher than Medicare-only beneficiaries or Medicaid-only adults with disabilities, putting them at higher risk for opioid use disorder (OUD). Health plans serving dually eligible individuals play a key role in treatment and recovery. However, the legal restrictions under 42 CFR Part 2 and its underlying statute, which protect patient confidentiality by regulating the ability of SUD treatment providers to share patient information, make it challenging for plans to provide good care management.

Recently, the health plans participating in Promoting Integrated Care for Dual Eligibles (PRIDE), a national initiative led by the Center for Health Care Strategies (CHCS) and supported by The Commonwealth Fund, asked Manatt Health about working within the law to get the information needed to help members with OUD. The responses, summarized below, are captured in a new CHCS blog post. Click here to read the full post.


Information Sharing for Grant Oversight

Q: Health Plan A funded a county agency that provides detoxification services to develop a more integrated withdrawal management model for its dually eligible members. The county agency will not provide the plan with any information on its members using the services, citing 42 CFR Part 2. How can the plan work within existing laws and regulations to obtain the information it needs to evaluate the new services’ impact on its members?

A: The plan should be able to access this information. 42 CFR Part 2 contains an exception (see 42 CFR Section 2.53) for providers to share information for audit and evaluation purposes with any entity that is a third-party payer or otherwise provides financial assistance to the provider. The plan and the Part 2 provider would need to adhere to the requirements for that exception.

If the county does not agree to the plan’s exception request under Section 2.53, the plan could suggest the use of a third-party vendor to create a de-identified data set using a coded link between the provider’s data and the plan’s data. A provision under the rule allows for “qualified service organizations” (see 42 CFR Section 2.11) that are vendors to Part 2 providers to receive information if, by doing so, they are solely carrying out a function on behalf of the Part 2 provider. Another possible mechanism to ensure the plan’s ability to access information would be to seek at the outset of the grant an exception to 42 CFR Part 2 for research purposes (see 42 CFR Section 2.52).

Patient Consent for Information Sharing

Q: Health Plan B would like to share information about its members who are in treatment for SUD with primary care physicians to provide better coordination and communication around members’ care. To do this, the plan would need to confirm that the Part 2 treatment providers have a patient’s signed consent form on file permitting information release. How can the plan encourage SUD providers to collect and keep patient consent forms on file?

A: There is no exception to Part 2 rules for care coordination. A 2017 update to 42 CFR Part 2 allows—in certain circumstances involving electronic exchanges—for the use of consent forms that do not name all information recipients, but the requirement to obtain patient consent for purposes of treatment and care coordination remains in place.

Assuming that Part 2 providers are part of the plan’s contracted network, the plan could consider imposing requirements on them to try to obtain patient consent under its network contracts. While a plan cannot mandate that providers obtain patients’ consent for information sharing, the plan could supply providers with a model form, require that the providers ask patients to provide consent, and then require that copies of any executed consent forms be returned to the plan. Another option is for the plan to reach out directly to members to obtain their consent.

Information Sharing for Care Management

Q: Health Plan C’s care management team sometimes receives calls directly from members who are having a mental health crisis or learns that members have been seen in the emergency department for an overdose. Can the care team share this information with the members’ SUD treatment providers or does 42 CFR Part 2 prevent it from doing so?

A: In general, the information-sharing restrictions in 42 CFR Part 2 apply only to programs (see 42 CFR Section 2.11) that hold themselves out as providing SUD treatment. The health plan and its staff would not be subject to Part 2, nor would the emergency department of a general hospital, because they do not specifically hold themselves out as SUD providers.

Incentives for Information Sharing

Q: Health Plan D struggles with how to provide good care management to members after their discharge from a county-based detoxification program, because the program will not tell the plan when members are in treatment. The plan has tried to obtain consent for information sharing directly from members, but since most of its care management activities are done telephonically, this has been difficult. What are the plan’s options?

A: One approach is to contact the detoxification program and (a) ask it to seek the individual’s consent if he or she is indeed being treated there, and (b) if consent is obtained, to contact the health plan. The health plan does not ask the detoxification provider to confirm or deny if it is treating the individual. Therefore, the program can do this without violating Part 2.

Another option would be for health plans to incentivize Part 2 providers to obtain their patients’ consent for information sharing. This is more difficult when the plan does not pay for the SUD treatment services. When plans do pay for these services, they have more leverage with providers. They can create a value-based payment arrangement that offers a bonus to SUD treatment providers that accomplish certain goals (e.g., reduce hospital readmissions).

Disclaimer: The information in the blog post is for educational purposes only. Health plans and providers should consult their own legal advisors.



pursuant to New York DR 2-101(f)

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