Treating Mental Illness? Special Privacy Considerations Apply to Healthcare Providers

by DLA Piper
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Contributed by Lara Compton as part of the ongoing Privacy Matters series.

Decisions and unresolved questions about when and how to share information about mental illness treatment continue to make headlines.  A variety of groups, including health care providers, law enforcement and mental health advocates, have voiced concerns and expressed confusion. 

The Office of Civil Rights recently released guidance on disclosure of mental health information under HIPAA.  The following are questions and answers that summarize the OCR’s answers to common questions related to mental health information, but keep in mind that complete answers to most of the questions require analysis of state law.

Q:  I work with mental health information, are the HIPAA rules more stringent for this kind of information?

A:  Only with respect to psychotherapy notes, but state law must also be followed with respect to the privacy of health information if it is more stringent than the HIPAA rules.

The only mental health information specifically protected by HIPAA are “psychotherapy notes,” which are notes recorded by a health care provider who is a mental health professional documenting or analyzing the contents of a conversation during a counseling that are separate from the rest of the patient’s medical record.  Psychotherapy notes also do not include any information that is maintained in a patient’s medical record.  

 We note however that many states have laws that protect mental health information in a more stringent manner than HIPAA which may apply, and that those laws must be followed.

 Q:  As a health care provider (HCP) I frequently receive requests for mental health information from patients’ family, friends, or other persons who are involved in the patient’s care.  When can I share this information with them and what information can I provide?

 A:  HCPs may provide limited information in limited circumstances.  If the patient is present and has the capacity to make health care decisions and does not object to the disclosure, an HCP may communicate with a patient’s family members, friends, or other persons the patient has involved in his or her health care or payment for care.  Consent to sharing such information may be inferred by an HCP based on the circumstances.

Where a patient is not present or is incapacitated (e.g., the HCP has made the determination that due to the patient’s mental condition they are not able to make decisions about their care), HCPs may share the patient’s information with family, friends, or others involved in the patient’s care or payment for care (the provider should be reasonably sure they are involved), as long as in the HCP’s professional judgment doing so is in the best interests of the patient.  The HCP 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, in making a decision about the patient’s best interests.  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.

Otherwise, with limited exceptions related to preventing harm, as further discussed below, information may not be shared.

 In all cases, HCPS should limit disclosures to the information directly relevant to the person’s involvement in the patient’s care or payment for care, and should also comply with any additional restrictions as required by state law.

 Q:  An adult patient’s family members are concerned about the patient’s mental health, but the patient objects to sharing any information with family members.  What can I do?

 A:  The options are limited but family members may still participate in their care by providing information to an HCP on a confidential basis.  The HIPAA Privacy Rule permits HCPs to disclose information to the family members of an adult patient who has capacity and indicates that he or she does not want the disclosure made, only to the extent that the provider perceives a serious and imminent threat to the health or safety of the patient or others and the family members are in a position to lessen the threat.  Otherwise, under HIPAA, the provider must respect the wishes of the adult patient who objects to the disclosure, as described above.

 However, HCPs may listen 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.

 If the patient later requests access to the health record, any information disclosed to the provider by another person who is not an HCP that was given under a promise of confidentiality (such as that shared by a concerned family member), may be withheld from the patient if the disclosure would be reasonably likely to reveal the source of the information.  This exception to the patient’s right of access to protected health information gives family members the ability to disclose relevant safety information with health care providers without fear of disrupting the family’s relationship with the patient.

 Q:  As an HCP, sometimes my patients stop taking their medications or do or say things that otherwise make me concerned about their overall well-being, their safety, or the safety of others.  When can I disclose information to intervene, and when am I legally obligated to disclose information?

 A:  HCPs may disclose limited information in order to protect the safety of the patient or others, and should consult state law regarding their duty to warn.  HCPs may disclose information to family members if the patient does not object or it is in the best interests of the patient who does not have capacity to make decisions as further discussed above.

 An HCP may not share information if a competent patient objects, unless the provider has a good faith belief that the patient poses a threat to the health or safety of the patient or others, and the family member is reasonably able to prevent or lessen that threat unless in sharing information with the patient’s family member, and if doing so is consistent with applicable law and standards of ethical conduct.  For example, if based on experience the HCP knows that if a patient’s medication is not at therapeutic levels the patient is at high risk of committing suicide, the HCP may, if necessary to prevent or lessen the threat of harm to the patient or others,  share information with the patient’s family or other caregivers who can avert the threat.  However, absent a good faith belief that the disclosure is necessary to prevent a serious and imminent threat to the health or safety of the patient or others, the doctor must respect the wishes of the patient with respect to the disclosure.

 An HCP’s “duty to warn” generally is derived from and defined by standards of ethical conduct and state law, including case law.  An HCP may notify a patient’s family members of a serious and imminent threat to the health or safety of the patient or others if those family members are in a position to lessen or avert the threat, which will allow an HCP to notify appropriate persons of the threat consistent with ethical obligations and state law requirements.  In addition, even where danger is not imminent, HIPAA permits a covered provider to communicate with a patient’s family members, or others involved in the patient’s care, to be on watch or ensure compliance with medication regimens, as long as the patient has been provided an opportunity to agree or object to the disclosure and no objection has been made.

 Q:  A law enforcement officer has asked me to notify them when a patient who is on temporary psychiatric hold is released from our facility.  Is this allowed?

 A:  The facility may provide limited information in certain circumstances related to law enforcement and safety under HIPAA, if also in compliance with ethical standards and state law.  Typically, the fact that a patient has been released is not sufficient to justify disclosure by the facility to law enforcement, unless it is required by state law.  A facility may disclose upon request (orally or in writing) to a law enforcement officer certain protected health information, including the date and time of admission and discharge, if for the purpose of locating or identifying a suspect, fugitive, material witness, or missing person.  The facility may not disclose any protected health information under this provision related to DNA or DNA analysis, dental records, or typing, samples, or analysis of body fluids or tissue.

 HIPAA’s law enforcement provisions also permit a facility to respond to an administrative request from a law enforcement official, such as an investigative demand for a patient’s protected health information, provided the administrative request includes or is accompanied by a written statement specifying that the information requested is relevant, specific and limited in scope, and that de-identified information would not suffice in that situation.  HIPAA also permits facilities to respond to court orders and court-ordered warrants, and subpoenas and summonses issued by judicial officers.  To the extent that State law may require providers to make certain disclosures, HIPAA would permit such disclosures of protected health information as “required-by-law” disclosures.

 Finally, a facility may disclose a patient’s protected health information, consistent with applicable legal and ethical standards, to avert a serious and imminent threat to the health or safety of the patient or others.  Such disclosures may be made to law enforcement authorities or any other persons, such as family members, who are able to prevent or lessen the threat.

 Q:  When can parents of children with mental health issues obtain their child’s mental health information?

 A:  The ability to access a minor’s mental health information will be heavily influenced by state law and could also be subject to additional federal laws. 

  • Personal representatives may access mental health information in accordance with state law.  Parents generally are presumed to be the personal representatives of their un-emancipated minor child for HIPAA privacy purposes.  Parents’ ability to act as a child’s personal representative is governed by state law, with respect to the age of majority and the rights of parents to act for a child in making health care decisions.  State law (including relevant case law) will dictate the rights of personal representatives to access a minor’s protected health information.  
  • Parents are not always considered their child’s personal representative.  A parent is not treated as a minor child’s personal representative when: (1)  state or other law does not require the consent of a parent or other person before a minor can obtain a particular health care service, the minor consents to the health care service, and the minor child has not requested the parent be treated as a personal representative; (2) someone other than the parent is authorized by law to consent to the provision of a particular health service to a minor and provides such consent; or (3) a parent agrees to a confidential relationship between the minor and a health care provider with respect to the health care service.  For example, if state law provides an adolescent the right to obtain mental health treatment without parental consent, and the adolescent consents to such treatment, the parent would not be the personal representative of the adolescent with respect to that mental health treatment information.
  • HCPs may make disclosures to parents who are not personal representatives if consistent with professional judgment and state law.  In cases in which state or other applicable law is silent concerning disclosing a minor’s protected health information to a parent, and the parent is not the personal representative of the minor child based on one of the exceptional circumstances described above, a covered entity has discretion to provide or deny a parent access to the minor’s health information, if doing so is consistent with state or other applicable law, and the decision is made by a licensed HCP in the exercise of professional judgment.
  • Parents may not obtain copies of psychotherapy notes, although depending on state law a provider may have some discretion to disclose psychotherapy notes to a patient’s personal representative instead of the patient directly. 
  • The limitations on school administrators, or a school doctor or nurse in sharing student information are generally imposed by the Family Educational Rights and Privacy Act (FERPA), not HIPAA.  HHS and the Department of Education have developed guidance clarifying the application of HIPAA and FERPA.  If HIPAA, not FERPA, does apply in the school setting, the Rule allows disclosures to parents of a minor patient or to law enforcement in various situations.  If a minor child is involved the parent as the child’s personal representative may have access to mental health information.  Information may be disclosed to law enforcement for the purposes described above.
  • When minors are treated for a mental health disorder and a substance abuse disorder, additional state and federal laws may be applicable to substance abuse information.  For example, the Federal confidentiality statute (42 USC § 290dd–2; 42 CFR 2.11, et. seq.) and regulations that apply to federally-funded drug and alcohol abuse treatment programs contain provisions that are more stringent than HIPAA.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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