Submitted via E-Rulemaking Portal
September 24, 2019
The Substance Abuse and Mental Health Services Administration
U.S. Department of Health and Human Services
Attn: Suzette Brann, SAMHSA
5600 Fishers Lane, Room 13E01B
Rockville, Maryland 20857
Re: Comments on Notice of Proposed Rulemaking regarding 42 CFR Part 2 (SAMHSA-4162-20; RIN 0930-AA30)
Dear Ms. Brann:
On behalf of Faces & Voices of Recovery, these comments pertain to the federal Notice of Proposed Rule Making, which seeks to amend 42 CFR part 2 § 2.63(a)(2), posted in the Federal Register on Monday August 26, 2019. To be clear, Faces & Voices of Recovery strongly opposes the NPRM’s proposed changes.
The proposed change at issue- removal of the words “allegedly committed by the patient” in 42 CFR § 2.63(a)(2) – is an attempt to expand the powers of law enforcement as they conduct investigations into the use and trafficking of illegal narcotics. While Faces & Voices respects the efforts of law enforcement, we believe this proposed rule change is misguided. A patient’s records- especially records that cover an issue as sensitive as substance use disorders- are not the place to search for this information.
As this nation continues on in the grips of not only an opioid epidemic, but also an addiction epidemic, we must do everything possible to encourage treatment and recovery. It is well known that only approximately 10% of all people with a SUD seek treatment. The most recent national survey in 2015 found that an estimated 21.7 million people ages 12 or older (1 in 12 people) were in need of substance use disorder (“SUD”) treatment, but only 2.3 million of them received it in the past year.¹ There is a plethora of reasons as to why this is so, but what we cannot afford to do is make this treatment- which is so hard to secure to begin with- even less attractive to the population that is in need. The threat of investigation to an individual who enters treatment already exists, albeit only after a special court order is issued for access to treatment records. Under the proposed rule change, a person seeking treatment must also live under the threat of their friends and associates being investigated, which is yet another in a long list of deterrents to seeking care.
Unlike other types of health care information, disclosure of SUD patient records can not only discourage patients from seeking treatment, it subjects them to the risk of experiencing severe negative consequences and discrimination.²
In the NPRM issued for this proposed rule change, we read that “Acting Secretary Eric Hargan declared a public health emergency on October 26, 2017, to address the national opioid crisis and, most recently, HHS Secretary Alex Azar renewed that declaration on July 23, 2018. The proposed correction of the part 2 rule would help to address this public health emergency by facilitating the prompt investigation and prosecution, if warranted, of opioid-related crimes allegedly committed by individuals other than patients.” While we applaud the declaration of this emergency, it is our sincerest belief that a public health emergency requires a public health response- not a law enforcement response.
SAMHSA’s rationale is that more prosecutions and investigations will help improve the opioid epidemic, it is a faulty position. Another study by Pew showed that in the states, there is absolutely no correlation between prison sentences and drug misuse. Again, the public does not favor more prosecutions. Across demographic groups and political parties, U.S. voters strongly support a range of major changes in how the states and federal government punish people who commit drug offenses. A nationwide telephone survey of 1,200 registered voters, conducted for Pew in 2016 by the Mellman Group and Public Opinion Strategies, found that nearly 80 percent favor ending mandatory minimum sentences for drug offenses.³ SAMHSA has not provided any evidence substantiating the claim by federal law enforcement authorities that the current language in Section 2.63(a)(2) materially interferes with their ability to prevent drug trafficking and patient exploitation. Indeed, even without the proposed change, law enforcement continues to be able to seek access to the non-confidential parts of records when investigating an extremely serious crime.
The NPRM states “HHS believes reverting to the previous language for this section is necessary to help reduce and deter drug trafficking at or from part 2 programs, and thereby to prevent the occurrence of extremely serious crimes.” In the NPRM, there are no citations of data to back the claim that this even occurs with any frequency. There is no evidence that the potential threat of investigation and prosecution is a deterrent to drug trafficking, or to any crimes affiliated with drug use or possession. To the contrary, there is evidence that the threat of prosecution is a deterrent from seeking treatment.
This attempt to increase arrests, in an attempt to address what is a public health issue, harkens back to the days of the “war on drugs,” a criminal justice-based approach to narcotics which is universally agreed upon to be a massively misguided failure. The public agrees- A 2014 report by the Pew Research Center found that 67 percent of respondents thought that government should implement policies focused on treatment, while only 26 percent stated that prosecution should be the focus.4
SAMHSA is a public health agency. It exists to promote health, especially in the realms of substance use and mental health disorders. If its sincerest wish is to promote health, it should be tearing down barriers to care, not erecting them. They should have no interest whatsoever in assisting the criminal justice system to place more people in harm’s way.
Patty McCarthy, M.S.
Faces & Voices of Recovery
10 G Street NE, Suite 600
Washington, DC 20002
Faces & Voices of Recovery is the nation’s leading grassroots, non-profit, recovery advocacy organization. We represent the voice of millions of individuals and families in recovery from alcohol and drug addiction across the nation. Our primary focus is to remove barriers to treatment and recovery support services and make recovery possible for even more Americans. For more information visit www.facesandvoicesofrecovery.org.
¹ U.S. Dep’t of Health & Human Services, Substance Abuse & Mental Health Services Admin., Key Substance Use and Mental Health Indicators in the United States: Results from the 2015 National Survey on Drug Use and Health 25 (Sept. 2016), available at https://www.samhsa.gov/data/sites/default/files/NSDUH-FFR1-2015/NSDUH-FFR1- 2015/NSDUH-FFR1-2015.pdf.
² See generally Legal Action Center, Discrimination Against Patients With Substance Use Disorders Remains Prevalent and Harmful: The Case for 42 CFR Part 2 (Apr. 13, 2017), available at http://healthaffairs.org/blog/2017/04/13/discrimination-against-patients-with-substance-use-disorders-remains- prevalent-and-harmful-the-case-for-42-cfr-part-2/.
³ The Pew Charitable Trusts, “Voters Want Big Changes in Federal Sentencing, Prison System” (2016), http://www.pewtrusts.org/en/research-and-analysis/analysis/2016/02/12/voters-want-changes-in-federal-sentencing-prison-system.
4 “America’s New Drug Policy Landscape,” Pew Research Center, April 2, 2014, http://www.people-press.org/2014/04/02/americas-new-drug-policy-landscape/.
10 G St. NE Suite 600 · Washington, DC 20002 · 202.741.9355 · facesandvoicesofrecovery.org