Session # C5a
October 6, 2012
Kenneth Kushner, Ph.D.
Professor, University of Wisconsin Department of Family Medicine
Neftali Serrano, Psy.D.
Director, Primary Care Behavioral Health
Access Community Health Centers
Clinical Assistant Professor, University of Wisconsin Department of Family
Medicine
Mark Marnocha,Ph.D.
Associate Professor, University of Wisconsin Department of Family Medicine
Collaborative Family Healthcare Association 14 th Annual Conference
October 4-6, 2012 Austin, Texas U.S.A.
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Please include ONE of the following statements:
We have not had any relevant financial relationships during the past 12 months.

S Describe how HIPAA regulations pertain to the inclusion of behavioral health records in EHR’s
S Describe how the Wisconsin statutes pertain to the inclusion of behavioral health records in EHR’s
S Describe how the American Psychological Association ethics code pertains to the inclusion of behavioral health records in EHR’s
S Discuss the potential policy implications of current policies regarding the inclusion of behavioral health records in EHR’s

A learning assessment is required for CE credit.
Attention Presenters:
Please incorporate audience interaction through a brief Question & Answer period during or at the conclusion of your presentation.
This component MUST be done in lieu of a written pre- or post-test based on your learning objectives to satisfy accreditation requirements.

“Though it comes as a surprise to some, BHC consultation notes are primary care records and should not be treated any differently from other primary care notes.”
Robinson and Reiter, Behavioral Consultation and Primary Care: A
Guide to Integrating Services

S HIPAA
S An example of state law
S Wisconsin statutes and regulations
S An example of a professional society
S American Psychological Association

S We are not lawyers
S We suggest you consult your attorneys before making decisions relevant to laws governing your practices

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S Part I was enacted in 1996
S 349 pages
S Part II became effective in 2004
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419 pages
Contains the privacy and security rules

S How many people have read HIPAA in its entirety?

S Pertains only to electronic medical records
S Does not make a distinction between “behavioral health” and “mental health” information
S Mental health is barely mentioned in Part 1 other than to state that mental health information is considered health information

S Part II makes no restrictions regarding the release of mental health information per se
S Nor does it make a distinction between information provided by physicians versus other health professionals, eg psychologists
S It does make a distinction regarding “psychotherapy notes”

S Defines “psychotherapy notes” as:
“notes recorded (in any medium) by a health care provider who is a mental health professional documenting or analyzing the contents of conversation during a private counseling session or a group, joint, or family counseling session and that are separated from the rest of the individual’s medical record. Psychotherapy notes excludes medication prescription and monitoring, counseling session start and stop times, the modalities and frequencies of treatment furnished, results of clinical tests, and any summary of the following items:
Diagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date.” (Part II, p. 82805)

S In the commentary to part II, “psychotherapy notes” are clearly defined as “process” notes, as opposed to “progress” notes
S These are kept separate from the rest of the medical records
S Separate and specific consent is required to release
“psychotherapy notes”, but not “progress notes”

S Consent is required to disclose information to carry out
“treatment, payment, or health operations”
S There are exceptions for emergencies
S With the exception of “psychotherapy notes” there are no special requirements for mental health information or for mental health professionals

S The “minimum necessary” standard (in §164.502 ):
S “b) Standard: Minimum necessary. (1) Minimum necessary applies. When using or disclosing protected health information or when requesting protected health information from another covered entity, a covered entity must make reasonable efforts to limit protected health information to the minimum necessary to accomplish the intended purpose of the use, disclosure, or request.
S (2) Minimum necessary does not apply. This requirement does not apply to:
(i)Disclosures to or requests by a health care provider for treatment

S Summary of implications of HIPAA
S With the exception of “psychotherapy notes”, behavioral health information is treated as being equivalent to other medical information, regardless of the health professional entering it in the EHR
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Because it is for diagnosis and treatment, behavioral health information may be treated the same as any primary health care information within a covered entity
The same informed consent procedures for treatment and release of information are required for behavioral health information as for other primary care information

S HIPAA regulations are superseded by state laws concerning privacy if the state laws are more stringent that HIPAA

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The examining board shall adopt such rules as are necessary under this chapter and shall, by rule, establish a reasonable code of ethics governing the professional conduct of psychologists, using as its model the "Ethical
Standards of Psychologists", established by the American
Psychological Association. The primary intent of this code shall be to assure that licensed psychologists limit their practices to those specialties in the field of psychology which
they are qualified to practice. Every person who holds a license to practice psychology in this state shall be governed and controlled by such code of ethics.
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See also Psy and ch Psy 5 , Wis. adm. code.

( 12) Revealing facts, data, information, records or communication received from a client in a professional capacity except in the following circumstances:
(a) With the informed consent of the client or the client’s authorized representative.
(e) Use of case history material for teaching or research purpose, or in textbooks or other literature, provided that proper precautions are taken to conceal the identity of the client.
(c) If necessary to prevent injury to the client or another person.
d) Pursuant to the lawful order of a court of law.
( f) Where otherwise permitted or required under ss. 51.30 and
146.82, Stats.
(g) When required by federal or state law.

(2) Informed consent. An informed consent for disclosure of information from court or treatment records to an individual, agency, or organization must be in writing and must contain the following: the name of the individual, agency, or organization to which the disclosure is to be made; the name of the subject individual whose treatment record is being disclosed; the purpose or need for the disclosure; the specific type of information to be disclosed; the time period during which the consent is effective; the date on which the consent is signed; and the signature of the individual or person legally authorized to give consent for the individual.

Confidentiality. All patient health care records shall remain confidential. Patient health care records may be released only to the persons designated in this section or to other persons with the informed consent of the patient or of a person authorized by the patient.
However, there is permission for a free exchange of information….

( a) Notwithstanding sub. (1) , patient health care records shall be released upon request without informed consent in the following circumstances: a. The person is rendering assistance to the patient. b. The person is being consulted regarding the health of the patient.

S 5.01(12)f appears to allow proper Professional
Conduct to be guided by 146.82, which supports the unimpeded flow of information pertaining to patient health care, emergent or otherwise.
S 146.82(2)a.2 appears to grant the sort of communication required for integrated behavioral health-care.
S 5.01(12)b appears to allow “prior notification” to have validity equivalent to informed consent.

S It appears that the flow of information adequate for integrated care (outside the state mental health system) is
NOT professional misconduct, and is expressly permitted by the rules and statutes cited in 501(12).
S The APA Code is invoked as a model for a state code of ethics, though the actual Wisconsin state code of conduct is largely a listing of exceptions/violations, rather than general ethical principles and specifics (“Chapter Psy 5
CONDUCT”).

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Section Applicability Comment
Principle D: Justice
Access to mental health services is scarce, especially for some populations and PCBH seeks to address this justice issue. Without seamless communication integrated care models break down.
Important to the discussion is the reality of access barriers to care inappropriate information sharing protections becomes one of them
Standard 3.09: Cooperation with Other Explicit indication for collaborative
Professionals work for the patient's benefit.
Standard 3.10 Informed Consent a.Patient's should consent explicitly to receive services. d. Documentation is necessary.
Implied is the responsibility to collaborate
Standard 4.01: Maintaining confidentiality
Standard 4.02: Discuss limits of confidentiality
Reasonable precautions to protect confidential information limits of confidentiality, foreseeable uses of the information generated
The term "discussion" appears several
Discussion with patients regarding the times with regard to informed consent and confidentiality. This is an aspect that needs to be clarified as medicine through psychological activities (at the has differing standards of consent outset) which do not (cannot) involve verbal discussion

Section Applicability Comment
Standard 4.04: Minimizing intrusions on privacy
Discussion in consultations of only germane information for the purpose of communication and only with persons clearly concerned with such matters
Principle of restricting nature of information to "need to know". Lends itself to the need for appropriate documentation and use of language.
Standard 4.05: Disclosures
Standard 6: Record Keeping & Fees
Standard 6.02b: Maintenance, dissemination, and disposal of confidential records of professional and scientific work
Standard 10: Therapy (.01)
May disclose with consent or when permitted by law to obtain appropriate professional consultations
The importance of record keeping is introduced with continuity of care
Documentation necessary for continuity of care (but related to "later" care) alluded to, but mostly with the implication of transfer of records to another MH professional who will take over care
Information entered into databases and record systems need to be protected.
This seems to apply to research but may apply to EHR. The masked PI is clearly unreasonable for a medical environment.
Requirements for informed consent including nature, course of therapy, fees, involvement of third parties, and provide opportunity for discussion
The specific content of informed consent is discussed, again with provision for "discussion."

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There is no section labeled “Exactly how to behave ethically in an integrated primary care environment.” The ethics code does not preclude integrated care, but was clearly not written with an integrated environment in mind.
The ethics code is clearly oriented to protection of the individual. Another ethical perspective, oriented to population-based care, is the protection of large groups of people (justice).
Furthermore, the "consultant" role of the Behavioral Health Consultants falls outside of the scope of the ethics code in that a formal treatment relationship is not established. The consultant works to enhance the existing medical service and not establish an independent service and has responsibility to both the PCP and patient in that order.
A key question is whether the standard informed consent used in medicine fulfills the spirit of the ethics code.
In lieu of "discussion" which is often irrelevant and impossible in integrated primary care behavioral health, is written consent acceptable?

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S HIPAA, Wisconsin state law and the APA ethics code do not preclude the integration of behavioral health information in EHRs within an integrated care model, given that proper informed consent is obtained.
S However, none of them directly address population-based models of care.
S In particular the the APA ethics code needs to incorporate psychologist roles outside of the
“independent practitioner role” and reflect the population-based and consultation-based perspective of integrated care.
S Nothing in the APA code currently precludes operating in a seamless fashion within an existing medical practice with a free flow of verbal and written information, but too much emphasis is placed on “discussion” based informed consent. Current practitioners thus have no ethical limits but also not much ethical guidance.
S Applicability of the APA code will depend on the nature of the integrated care practice.
The more “independent” and free-standing the practice is/ behaves, the more applicable the code elements become because of the nature of the relationship established with the patient and the role of the practitioner.
S It may make the most sense to craft this section of the code in conjunction with a major medical association such as the AMA or AAFP.

S Such collaboration is especially important since family physicians often obtain, explore, diagnose, and treat many of the conditions/content/diagnoses seen in
MH settings.
S So if the relationship and the depth of sharing are the criteria, then either primary care notes need higher levels of protection (sometimes) or else we are health-care generalists alongside our other primary care professionals.
S APA needs further alignment with Integrated Care, Health Psychology and
Primary Care treatment models to better help us in the trenches and our licensing boards to have good guidelines for risk management and ethical care.
S What the laws say is distinct from the accumulation of legal interpretations and precedents.
S The EMR has unique risks for all of us.
(eg, unauthorized copying and sale of lists of patients with specific diagnoses, ABC News, 9/13/2012
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Please complete and return the evaluation form to the classroom monitor before leaving this session.