From the desk of Mary Zdanowicz, Esq.
Understanding HIPAA Laws & Recent HIPPA Reform
he concepts of privacy and confidentiality are cornerstones in the relationship between a patient and doctor. Generally, privacy refers to an individual's interest in maintaining control over health care information and confidentiality refers to a health care provider's obligation to maintain a patient's privacy.
Each state has medical privacy laws and regulations covering a variety of topics, such as rules governing release of medical information to an insurance carrier. Massachusetts has more than fifty specific legal provisions governing privacy and confidentiality of medical information.
However, most people associate this topic with "HIPAA," the Health Information Portability and Privacy Act. Fifteen years ago, the U.S. Department of Health and Human Services (DHHS) established federal guidelines for privacy and security of personal health information (the "HIPAA Privacy Rule"). Most patients are familiar with the "HIPAA release form," which must be signed in order for a doctor to release information to an insurance company, other providers, family, friends, etc.
The HIPAA Privacy Rule does not distinguish mental health information from information about other medical conditions. However, in practice, mental health providers tend to be more vigilant when it comes to sharing mental health information with a patient's family. According to one study, relatives caring for an adult with a serious to moderate mental health condition were 77% more likely to be told that a healthcare provider or professional was unable to speak with them.
In February 2014, DHHS issued guidance about health care providers sharing information about a patient's mental health condition. It is a good resource for family members, friends or others involved in a patient's care, who are having difficulty obtaining information about the patient's condition.
For example, a health care provider may:
Listen to family members about their loved ones receiving mental health treatment - HIPAA in no way prevents health care providers from listening to family members or other caregivers who may have concerns about the health and well-being of the patient, so the health care provider can factor that information into the patient's care.
Consider the patient's capacity to agree or object to the sharing of their information - Under certain circumstances, such as a patient who is suffering from temporary psychosis or is under the influence of drugs or alcohol, a provider may share information with the patient's family. If a provider believes the patient cannot meaningfully agree or object to sharing the patient's mental health information, the provider is allowed to discuss the patient's condition with a family member, if the provider believes it would be in the patient's best interests. The provider should take into account the patient's prior expressed preferences regarding disclosures of their information, if any, as well as the circumstances of the current situation. Once the patient regains the capacity to make these choices for herself, the provider should offer the patient the opportunity to agree or object to any future sharing of her information.
Involve a patient's family members, friends, or others in dealing with patient failures to adhere to medication or other therapy- If a doctor knows from experience that, when a patient's medication is not at a therapeutic level, the patient is at high risk of committing suicide, the doctor may believe in good faith that disclosure is necessary to prevent or lessen the threat of harm to the health or safety of the patient who has stopped taking the prescribed medication, and may share information with the patient's family or other caregivers who can avert the threat.
For more information visit: https://www.hhs.gov/hipaa/for-professionals/special-topics/mental-health/
The Helping Families in Mental Health Crisis Act, signed by President Obama in December 2017, recognized that confusion about HIPPA with respect to the treatment of serious mental illness. Misunderstanding "may hinder appropriate communication" with families and caregivers."
Among other things, the law requires the Secretary of Health and Human Services to clarify the circumstances under which a health care provider may share information with a family of caregiver. For example, based on the exercise of professional judgment, a doctor may communicate with family when it is "in the best interest of the patient when the patient is not present or otherwise incapacitated."
In a recent interview, Congressman Tim Murphy, the sponsor of the bill, discussed HIPAA's privacy rules and how he believes the stringent regulations hurt people suffering from mental illness rather than help protect them. He explained that HIPAA is a problem because "some patients might be too incapacitated to make a decision, leaving them alone to deal with medical or psychological issues while family members are unaware there is a problem." Furthermore,
"For the patient themselves, we know that when a family member is engaged and involved, the success rate is very, very high," Murphy said. "When a family member is not involved, it declines considerably, so it's good for someone's health."
For more, see "Congressman Murphy wants to revamp HIPAA privacy rules."
Governor Baker's Budget & Mental Health
In the State of the Commonwealth address on January 24, 2017, Governor Baker identified a priority issue with respect to mental health:
"For decades, mental health advocates have urged the Commonwealth to redesign the way it serves those who are committed to Bridgewater State Hospital. Little has changed, and the results, in many cases, have been disastrous for all involved.
"We propose to do two things to address this longstanding and unacceptable situation.
"First, move Corrections Officers out of the hospital. And instead deploy them outside the facility to provide security.
"Second, the size and scale of the clinical program offered inside the hospital will be significantly expanded. This reform will not come cheap, as spending on clinical services will increase by $37 million. It's the right thing to do and we ask the legislature to support it.
Presumably, increases in the Department of Correction budget for FY2018 will fund the initiative.
With respect to the Department of Mental Health budget, the Governor is proposing a significant increase ($8 million) in adult mental health services for the budget beginning July 1, 2017. Most of the increase is for the Safety Net, which covers acute inpatient and community health center services for the uninsured. The FY2018 budget for the Safety Net is a $7 million increase over the current year.
oin the NAMI CC&I ADVOCACY NETWORK
The NAMI CC&I ADVOCACY NETWORK is focusing on the needs of adults with serious mental illnesses (SMI) and their families.
The Network will:
- identify priority topics to form the foundation of the advocacy program;
- monitor legislation, regulations, and policy developments; and
- develop a strategy for effective communication with NAMI CC&I members, stakeholders, policymakers and the public.
Send an email to firstname.lastname@example.org to join.