OCR Clarifies Permitted Disclosures, Including Mental Health Care

by Baker Donelson
Contact

The disclosure of mental health records and other disclosure-related issues tends to be less than clear for providers in their efforts to comply with the federal privacy rules. Such issues relate to appropriate disclosures to patients’ friends and family; disclosures of mental health treatment of minors and adults; and appropriate disclosures to law enforcement officials. Some helpful guidance in that regard was issued on February 20, 2014, by the Office for Civil Rights (OCR) of the Department of Health and Human Services (HHS).

HHS confirmed that providers are permitted to share information with a patient’s family, friends or others involved in the patient’s care, including mental health care. In doing so, HHS reminds health care providers that they have significant discretion to exercise professional judgment in determining the best interests of the patient. Health care providers may communicate with those involved with the patient’s care when:

  • The patient has capacity to consent, is competent and has authorized the communication to family or friends.
  • The patient is incapacitated or not present, or the health care provider determines the patient does not have the capacity to consent, e.g., patients under the influence of drugs or alcohol, in which case the provider may exercise professional judgment in determining that such communication (typically family or friends) is in the best interests of the patient. This includes a situation where a patient has stopped taking his/her medication and a provider determines that such action puts the patient’s health and safety at risk.
  • The patient is a minor and the individual requesting the information is the child’s parent, unless: state law does not require parental consent for the health care service at issue; someone other than the parent is authorized as the patient’s representative; or the parent has agreed to a confidential relationship between the patient and health care provider. State laws govern in matters related to parental authority, including when such authority terminates, i.e., the age of majority. If state law is silent, a provider or covered entity has discretion is deciding whether to disclose information to a parent.
  • The provider exercises his or her professional judgment and determines that disclosure of information including mental health information and psychotherapy notes (see below) is necessary to address the patient’s serious risk of harm to self or others, regardless of whether the patient provided consent or not, and/or to comply with applicable “duty to warn” laws. Under such circumstances, disclosures may be made to law enforcement officials.
  • Law enforcement is trying to locate a fugitive. A provider may disclose admission/discharge date and certain demographic information about the fugitive but not any information related to DNA, dental records, typing, samples or analysis of body fluids or tissue. Providers also have discretion in responding to an administrative request, if safeguards are in place, and court orders, warrants and subpoenas, as such are permitted as under the “required by law” exception.
  • In the event HIPAA applies to health information in the school setting as opposed to the Family Educational Rights and Privacy Act (FERPA), providers may disclose information to parents of minors or law enforcement in situations such as a perceived threat of serious or imminent harm to the patient or others.

In all of the situations described here, state law must be consulted. If a state imposes stricter protections of an individual’s information, such restrictions will trump the more lenient provisions in HIPAA.

While HIPAA does provide additional protection for mental health information, in that patients must authorize disclosure of such information for any reason, we are reminded how narrowly the protection is applied as it only relates to psychotherapy notes. Psychotherapy notes are notes recorded by a provider in the course of a private counseling session, whether it is an individual or group session, and which are separate from the remainder of the patient’s medical record. 45 C.F.R. 164.501. In addition, with respect to a minor patient’s psychotherapy notes, similar to other circumstances described above, providers may exercise discretion in disclosing such to parents, in their capacity as the patient’s personal representative. However, again, state law must be consulted for additional limitations on such disclosures.

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.

© Baker Donelson | Attorney Advertising

Written by:

Baker Donelson
Contact
more
less

Baker Donelson on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.