Generally, the confidentiality of substance use disorder (SUD) treatment records is protected under Title 42 of the Code of Federal Regulations (CFR) Part 2 and HIPAA. Despite this, there are instances where they can show up in a background check under certain conditions.
Title 42 CFR Part 2 and SUD patient records
SAMHSA guidance on the disclosure of patient records provides guidance on how substance abuse data is protected, “In general, Part 2 Programs are prohibited from
disclosing any information that would identify a person as having or having had a SUD unless that person provides written consent. Part 2 specifies a set of requirements for consent forms, including but not limited to the name of the patient, the names of individuals/entities that are permitted to disclose or receive patient identifying information, the amount and kind of the information being disclosed, and the purpose of the disclosure (see §2.31).”
This regulation requires that any information about a patient's SUD treatment cannot be disclosed without their explicit consent, except in specific circumstances such as medical emergencies, court orders, or for research purposes under strict conditions.
The necessity of this protection stems from the stigma and discrimination associated with substance use disorders. Many individuals might avoid seeking treatment out of fear that their private struggles could be exposed, leading to potential social, professional, or legal repercussions. By protecting privacy, Title 42 CFR Part 2 helps to remove these fears, encouraging more people to pursue the help they need.
See also: HIPAA and prescription records
HIPAA and PHI
HIPAA, on the other hand, protects any health-related information that can be used to identify an individual, which includes substance abuse records. This means that healthcare providers, insurance companies, and other entities covered by HIPAA must ensure that substance abuse information is securely stored and only disclosed under specific, permissible circumstances.
These entities are required to implement appropriate physical, administrative, and technical safeguards to protect this information. Furthermore, HIPAA allows the sharing of substance abuse information for treatment, payment, or healthcare operations without the individual's explicit consent.
See also: When can a healthcare provider share drug dependency information?
When can someone's drug use or rehab treatment info be shared with third parties doing background checks?
The following exceptions can affect background checks in specific ways. For example, if there's a court order related to a legal case or the patient signs a consent form for their protected health information (PHI) to be shared, SUD treatment information might appear in a background check.
- Written consent: If the individual has given written permission for sharing the information.
- Court order: If a court orders the release of the information under specific conditions.
- Emergencies: In rare cases, if there's an immediate threat to health or safety.
- Law enforcement requests: If law enforcement needs the information for a criminal investigation, but this usually requires a court order, too.
See also: HIPAA Compliant Email: The Definitive Guide
FAQs
Are there any exceptions where rehab or drug use might be disclosed?
If the rehab was court-ordered or part of a criminal case, it might show up on a background check.
What types of background checks could potentially reveal rehab or drug use?
Extensive background checks for positions in law enforcement, government, or jobs requiring security clearances might reveal more detailed personal history, including rehabilitation records.
Can employers ask about drug use or rehab during the hiring process?
Employers can ask about drug use if it relates to the ability to perform the job safely and effectively. However, questions about rehab are generally limited due to privacy and discrimination laws.
Kirsten Peremore
