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.
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, 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?
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.
See also: HIPAA Compliant Email: The Definitive Guide
If the rehab was court-ordered or part of a criminal case, it might show up on a background check.
Extensive background checks for positions in law enforcement, government, or jobs requiring security clearances might reveal more detailed personal history, including rehabilitation records.
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.