The Broad Application of 4 Pa. Code 255.5 Regarding Confidentiality of Substance Use Disorder Records

Pennsylvania’s Drug and Alcohol Abuse Control Act, 71 P.S. § 1690.101, et seq., contains a provision at Section 108 addressing the confidentiality of records related to the diagnosis and treatment of a substance abuse disorder (“SUD”). Through the use of passive voice, Section 108 has broad application on its face. For example, subsection (b) states that, “[a]ll patient records . . . shall remain confidential, and may be disclosed only with the patients’ consent and only . . .” subject to additional conditions.

Implementing that statutory provision is 4 Pa. Code 255.5, which employs active voice. That is, the subject (and consequently, the application) of the regulatory provision is ostensibly limited to “projects.” Though not defined in Title 4 of the PA Administrative Code, “projects” are defined at 28 Pa. Code § 701.1 as the organizations that administer and deliver drug and alcohol services as part of a Single County Authority drug and alcohol program. If you’ve clicked on this article, you probably know this already, so I will get to the issue advertised in the title.

Is the application of 4 Pa. Code 255.5 limited to projects? No. The website for the PA Department of Drug and Alcohol Programs contains a page on SUD Confidentiality. On that page is a link to a November 20, 2019 report prepared by George Washington University’s Health Information & the Law project. This report is an invaluable resource for understanding PA’s laws and regulations regarding SUD information disclosure. Among the topics covered by this report is the application of 4 Pa. Code 255.5.

Specifically, the report organizes into a few pages (including a helpful graphic) the various facility licensure provisions elsewhere in the PA Administrative Code that incorporate Section 255.5 by reference. The following Code provisions require compliance with Section 255.5:

1. Outpatient Activities, 28 Pa. Code 711.93;
2. Psychiatric Rehabilitation Services, 55 Pa. Code 5230.17;
3. Transitional Living Facilities, 28 Pa. Code 711.72;
4. Residential Treatment and Rehabilitation, 28 Pa. Code 711.43;
5. Intake Evaluation and Referral Activities, 28 Pa. Code 711.43;
6. Mental Health Services Providers, 28 Pa. Code 709.28;
7. Short-term Detoxification, 28 Pa. Code 711.62;
8. Freestanding Treatment Facilities, 28 Pa. Code 709.28 (and Narcotic Treatment Programs, 28 Pa. Code 715.11);
9. Inpatient Hospital Detoxification, 28 Pa. Code 710.23; and
10. Partial Hospitalization Activities, 28 Pa. Code 711.83.

You’d know nothing about that list looking at 4 Pa. Code 255.5 alone. So when reviewing any issue in PA involving the disclosure of SUD information, it’s important to remember the broad application (through reference) of Section 255.5.