Effective February 16, 2026, updated federal regulations under 42 C.F.R. Part 2 requires plan documents and Summary Plan Descriptions to be amended to address the handling of Substance Use Disorder (SUD) treatment records. The amendments below apply to Cafeteria Plans and Health Reimbursement Arrangements (HRAs) administered by Ameriflex.
Background & Regulatory Context
Title 42 of the Code of Federal Regulations, Part 2 (42 CFR Part 2) establishes strict federal confidentiality requirements for records originating from federally assisted substance use disorder treatment programs. These protections go beyond standard HIPAA requirements and restrict the re-disclosure of SUD records in ways that could identify an individual as having or having had a substance use disorder.
Following updated regulatory guidance, plan sponsors must amend their plan documents to explicitly reflect how SUD records are received, used, and protected when they originate from a Part 2 Program. These amendments are required under the updated federal framework.
Going forward, the HIPAA Privacy Notice included in the FSA and HRA Summary Plan Descriptions provided by Ameriflex will include the required SUD language. However, a one-page amendment to your existing Summary Plan Description is also linked below.
Amendment to Cafeteria Plan – Substance Use Disorder Treatment Records
Effective February 16, 2026
This amends the current Plan Document and Summary Plan Description. Notwithstanding anything to the contrary in the Plan Document and Summary Plan Description, pursuant to the provisions allowed under Title 42 of the Code of Federal Regulations (42 CFR Part 2), the HIPAA Privacy Notice is amended as follows:
In certain circumstances, we may receive records relating to the diagnosis, treatment, or referral for treatment of substance use disorder (“SUD”) from a federally assisted substance use disorder treatment program that is subject to the confidentiality requirements of 42 C.F.R. Part 2 (“Part 2 Program”).
When we receive SUD records that are subject to Part 2, those records continue to receive special privacy protections under federal law. We will use and disclose such records only as permitted by Part 2 and applicable provisions of HIPAA, and only for purposes expressly authorized by law, including treatment, payment, and health care operations, where permitted.
Federal law provides additional protections for SUD records received from a Part 2 Program. Such records may not be re-disclosed in a manner that would identify an individual as having or having had a substance use disorder, except as permitted by 42 C.F.R. Part 2 or as otherwise authorized by the individual or required by law. We maintain administrative, technical, and physical safeguards to prevent unauthorized use or disclosure of SUD records and to ensure compliance with applicable confidentiality requirements.
Individuals have the right to request access to and obtain copies of their SUD records received from a Part 2 Program, subject to applicable law. Individuals also have the right to request corrections to such records and to receive an accounting of certain disclosures, consistent with HIPAA and 42 C.F.R. Part 2. These rights may be subject to limitations where disclosure is prohibited or restricted by law.
Federal law prohibits discrimination against individuals based on their receipt of substance use disorder treatment. We do not use or disclose SUD records for unlawful or discriminatory purposes, including employment, housing, insurance underwriting, or access to benefits, except as permitted by law.
Individuals may file a written complaint regarding the use or disclosure of SUD records with the U.S. Department of Health and Human Services via mail, email, or online portal:
- Mail: Centralized Case Management Operations, U.S. Dept. of HHS, 200 Independence Ave., S.W., Room 509F HHH Bldg., Washington, D.C. 20201
- Email: OCRComplaint@hhs.gov
- OCR Complaint Portal: https://ocrportal.hhs.gov/ocr/cp/wizard_cp.jsf
Filing a complaint will not result in retaliation or adverse treatment.
Amendment to HRA Plan – Substance Use Disorder Treatment Records
Effective February 16, 2026
This amends the current Plan Document and Summary Plan Description. Notwithstanding anything to the contrary in the Plan Document and Summary Plan Description, pursuant to the provisions allowed under Title 42 of the Code of Federal Regulations (42 CFR Part 2), the HIPAA Privacy Notice is amended as follows:
In certain circumstances, we may receive records relating to the diagnosis, treatment, or referral for treatment of substance use disorder (“SUD”) from a federally assisted substance use disorder treatment program that is subject to the confidentiality requirements of 42 C.F.R. Part 2 (“Part 2 Program”).
When we receive SUD records that are subject to Part 2, those records continue to receive special privacy protections under federal law. We will use and disclose such records only as permitted by Part 2 and applicable provisions of HIPAA, and only for purposes expressly authorized by law, including treatment, payment, and health care operations, where permitted.
Federal law provides additional protections for SUD records received from a Part 2 Program. Such records may not be re-disclosed in a manner that would identify an individual as having or having had a substance use disorder, except as permitted by 42 C.F.R. Part 2 or as otherwise authorized by the individual or required by law. We maintain administrative, technical, and physical safeguards to prevent unauthorized use or disclosure of SUD records and to ensure compliance with applicable confidentiality requirements.
Individuals have the right to request access to and obtain copies of their SUD records received from a Part 2 Program, subject to applicable law. Individuals also have the right to request corrections to such records and to receive an accounting of certain disclosures, consistent with HIPAA and 42 C.F.R. Part 2. These rights may be subject to limitations where disclosure is prohibited or restricted by law.
Federal law prohibits discrimination against individuals based on their receipt of substance use disorder treatment. We do not use or disclose SUD records for unlawful or discriminatory purposes, including employment, housing, insurance underwriting, or access to benefits, except as permitted by law.
Individuals may file a written complaint regarding the use or disclosure of SUD records with the U.S. Department of Health and Human Services via mail, email, or online portal:
- Mail: Centralized Case Management Operations, U.S. Dept. of HHS, 200 Independence Ave., S.W., Room 509F HHH Bldg., Washington, D.C. 20201
- Email: OCRComplaint@hhs.gov
- OCR Complaint Portal: https://ocrportal.hhs.gov/ocr/cp/wizard_cp.jsf
Filing a complaint will not result in retaliation or adverse treatment.
Frequently Asked Questions
What is 42 C.F.R. Part 2?
42 C.F.R. Part 2 is a federal regulation that provides additional confidentiality protections for records related to substance use disorder treatment. These protections are stricter than standard HIPAA rules and limit how this information can be used and shared.
Why are plan documents being amended?
Federal guidance now requires health and welfare benefit plans that may receive records from federally assisted substance use disorder treatment programs to clearly describe how those records are handled, used, and protected.
Which plans are affected by this update?
These amendments apply to Cafeteria Plans and Health Reimbursement Arrangements (HRAs) that may receive or process claims or documentation involving substance use disorder treatment records.
Do these changes affect how claims are processed?
No changes are being made to eligibility, reimbursement, or claim submission procedures. The amendments focus on privacy, confidentiality, and disclosure requirements for certain types of medical records.
How do these rules differ from HIPAA?
HIPAA allows certain uses and disclosures of protected health information for treatment, payment, and health care operations. 42 C.F.R. Part 2 adds additional restrictions and requires explicit protections against re-disclosure of substance use disorder treatment records.
Do plan participants gain any new rights?
Participants continue to have rights to access, request amendments to, and receive an accounting of disclosures for their records, but the updated language clarifies how these rights apply specifically to substance use disorder treatment information.
Do employers have access to these records?
No. Employers do not receive protected health information, including substance use disorder treatment records, except in very limited circumstances permitted by law.
Ameriflex Has You Covered
As regulatory requirements continue to evolve, Ameriflex remains committed to helping you stay informed and compliant. We’re in this together and, as always, appreciate your partnership. If you have any questions, please feel free to contact us.