Behavioral Health Law Ledger | September 2025

Welcome to the Ledger

The September 2025 issue of Greenberg Traurig's quarterly Behavioral Health Law Ledger explores several developments in behavioral health law, including HHS's delegation of Part 2 enforcement to OCR, SAMHSA's 2024 National Survey on Drug Use and Health findings, and the Trump administration's executive order on civil commitments for mentally ill and homeless individuals.

HHS Secretary Delegates OCR to Enforce Part 2

On Aug. 26, 2025, U.S. Department of Health and Human Services (HHS) Secretary Robert F. Kennedy, Jr. officially delegated enforcement of the "Confidentiality of Substance Use Disorder (SUD) Patient Records" regulations at 42 CFR Part 2 (Part 2) to the Office for Civil Rights (OCR).[1] Part 2 provides heightened confidentiality protections for certain providers' SUD patient medical records.

As previously reported in the March 2024 Behavioral Health Law Ledger, in February 2024 HHS published a final rule substantially modifying the Part 2 regulations to implement Section 3221 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act in an effort to increase coordination among Part 2 providers in large part by aligning the Part 2 provisions with the Health Insurance Portability and Accountability Act of 1996 (HIPAA) regulations. Pursuant to the February 2024 final rule, HHS extended its civil enforcement authority employed under HIPAA to Part 2 (including the potential for civil monetary penalties for violations). Prior to the February 2024 final rule, violations of Part 2 were treated as felonies, and Part 2 lacked any civil enforcement provisions.

HHS' delegation of authority to OCR to enforce Part 2 includes the authority to:

1. Make decisions on interpreting, implementing, and enforcing Part 2 requirements;
2. Issue subpoenas related to Part 2 violation investigations and/or compliance reviews;
3. Enter into resolution agreements, monetary settlements, and corrective action plans for parties found to have violated Part 2; and
4. Impose civil monetary penalties for Part 2 violations.

As a reminder, Part 2 programs, lawful holders, and other parties subject to Part 2 must comply with the 2024 Part 2 final rule by Feb. 16, 2026.

SAMHSA Releases Annual National Survey on Drug Use and Health

In the July 29, 2025 edition of the Federal Register, the Substance Abuse and Mental Health Services Administration (SAMHSA) released the results of the 2024 National Survey on Drug Use and Health (NSDUH), which provides statistical data on substance use and mental health in the United States. The federal government has conducted the NSDUH since 1971, providing a "national snapshot" of the country's behavioral health as the primary source of statistical information on self-reported substance use and mental health of the U.S. civilian, noninstitutionalized population aged 12 or older. Specifically, the NSDUH measures (i) the use of illegal drugs, prescription drugs, alcohol, and tobacco; (ii) substance use disorder and substance use treatment; (iii) major depressive episodes, anxiety, suicidal thoughts/behaviors, and other symptoms of mental illness; and (iv) recovery from substance use and mental health disorders.

Pursuant to the 2024 NSDUH, SAMSHSA reports the following key findings as compared to the 2021 NSDUH report:

Mental Health

• Among adults, the percentage who had any mental illness (AMI) or serious mental illness (SMI) in the past year showed no change.
• For the first time, the 2024 NSDUH measured and reported anxiety symptoms amongst adolescents aged 12 to 17, with nearly one in five adolescents reporting moderate or severe symptoms of generalized anxiety disorder (GAD).
• Among adults, 7.4% had moderate or severe symptoms of GAD.
• Among adolescents aged 12 to 17, the percentage who had serious suicidal thoughts in the past year declined from 12.9% to 10.1%.
• Among adolescents aged 12 to 17, the percentage who had a major depressive episode in the past year declined from 20.8% to 15.4%.

Substance Use

• Among people aged 12 years or older in 2024, 58.3% used tobacco products, vaped nicotine, used alcohol, or used an illicit drug in the past month, defined as "current use."
• Among nicotine users, 71.5% of adolescents aged 12 to 17 years and 50.3% of young adults aged 18 to 25 years only vaped nicotine and did not use tobacco products.
• Among all current alcohol users aged 12 years or older, 43.1% reported binge drinking in the past month.
• Among people aged 12 or older, cocaine and prescription opioid misuse declined slightly, while marijuana and hallucinogens substance use increased.
• 0% of adults had either AMI or an SUD in the past year.

Treatment Services

• Among adolescents aged 12 to 17 with a co-occurring Major Depressive Episode (MDE) and an SUD in the past year, 72.1% received either substance use treatment or mental health treatment in the past year, and 27.9% received neither type of treatment.
• Among people aged 12 or older who were classified as needing substance use treatment in the past year, 19.3% received substance use treatment.
• Among adults with AMI, 52.1% (or 32.0 million people) received some mental health treatment, and among adults with SMI, 70.8% received some mental health treatment in the past year.

Recovery

• 2% of adults perceived that they ever had a problem with their use of alcohol or drugs. Among these adults, 74.3% considered themselves to be in recovery or to have recovered.
• 1% of adults perceived that they ever had a mental health issue. Among these adults, 66.9% considered themselves to be in recovery or to have recovered.

Executive Order Authorizes Civil Commitments of Mentally Ill and Homeless Individuals Unable to Care for Themselves

On July 24, 2025, President Donald Trump, by way of Executive Order No. 14321 titled "Ending Crime and Disorder on America's Streets," instructs the attorney general and the HHS secretary to shift "homeless individuals into long-term institutional settings for humane treatment through the appropriate use of civil commitment [to] restore public order." This is necessary, according to the executive order, because of the "endemic vagrancy, disorderly behavior, sudden confrontations and violent attacks [that] have made our cities unsafe." The executive order states that nearly two thirds of homeless individuals use hard drugs and an "equally large share" suffer from mental health conditions as well. The executive order instructs the attorney general, the secretary of HHS, along with the secretary of housing and urban development (HUD) and the secretary of transportation to assess their discretionary grant programs and prioritize giving those grants to states and municipalities that, amongst other requirements, enforce prohibitions on open illicit drug use, urban camping, and squatting, and enforce and/or adopt standards for civil commitment processes relating to treatment for individuals (i) who are a danger to themselves or others and suffer from a serious mental illness (SMI) or substance use disorder (SUD), or (ii) who are living on the streets and cannot care for themselves.

The executive order also instructs the secretary of HHS to, amongst other actions, defund discretionary grants the Substance Abuser and Mental Health Services Administration (SAMHSA) issues for so-called "harm reduction" or "safe consumption" efforts that facilitate illegal drug use. SAMHSA subsequently issued guidance relating to what supplies and services can be supported with SAMHSA funding in light of the executive order.

The executive order further directs the secretaries of HUD and HHS to end support for "housing first" policies (which HUD previously reported is supported by data and evidence to be more effective than "treatment first" approaches), and to have the HHS and HUD Secretaries, along with the attorney general, allow or require recipients of federal funding for homelessness assistance to collect health-related information and require those funding recipients to share such data with law enforcement authorities in circumstances permitted by law and to use the health data to provide medical care to individuals with mental health diagnoses. The executive order also instructs the attorney general to review recipients of federal housing to identify recipients in violation of federal law, including 21 U.S.C. §856 (which deems it unlawful to knowingly open, use, lease, rent, or maintain any place for the purposes of manufacturing, distributing, or using any controlled substance) and to bring civil or criminal actions in appropriate cases.

[1] See 2025-16391.pdf.