Maine Health Information
Management Association
Mental Health, Substance Abuse, HIV,
Minors - Confidentiality Update
Stacey Mondschein Katz, Esq.
September 19, 2014
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Maine: Mental Health Protections –
Specific Permission
• Something you already know:
• Disclosure of Mental Health Information requires
specific, written permission on an authorization form.
• But what is “Mental Health” Information?
▫ Telling a provider about feeling depressed or grieving a loss
in the course of a general examination does not put that
information under the “mental health” protections
requiring specific authorization/consent before disclosure
is permitted outside the office/entity. This information is
part of the patient’s general record, covered by 22 MRSA
1711-C and HIPAA.
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Mental Health Information
• Maine law (22 MRSA 1711-C) and HIPAA
generally govern health care information
• Mental health information is generally governed
by 34-B MRSA 1207
• Whose information is protected under this law?
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Mental Health Law 34-B MRSA 1001,
1207
• Client. "Client" means a person receiving services from the
Department [of Health and Human Services], from any state
institution or from any agency licensed or funded to provide
services falling under the jurisdiction of the Department.
• “All orders of commitment, medical and administrative records,
applications and reports, and facts contained in them, pertaining to
any client shall be kept confidential and may not be disclosed by any
person,”
• Exceptions include: statutory function of the Department, with
consent of patient or personal representative, court order, next of
kin or spouse, education and training (where does not identify
patient/client), to avert a serious threat of harm, danger, access to
firearms by person committed to an institution.
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Rights Rules - Application
• Definitions under the Maine Rights of Recipients of Mental Health Services
• Applies to Recipients, meaning any person over age 18 receiving mental
health treatment from any mental health facility, agency or program.
• “Mental Health Facility, Agency, or Program means any facility that
provides in-patient psychiatric services and any agency or facility providing
in-patient, residential or outpatient mental health services that is licensed
by, funded by or has a contract with the Department of Health and
Human Services.”
• Treatment means any activity meant to prevent, ameliorate, prevent
deterioration of, or cure a recipient's mental health problem or mental
illness and includes behavioral, psychological, medical, social, psychosocial
and rehabilitative methods that meet usual and customary standards in the
field of mental health treatment.
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Specific Permission Under 1711-C
▫ Specific written permission is required before
disclosure outside the practice/organization
where:
 The PHI is provided to a psychiatrist, psychologist,
counselor, social worker or clinical nurse specialist
and there is no emergency, or
 the information was provided in the context of a
licensed mental health program or facility.
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NEW! Mental Health-Related
Amendment to State Law
• Amendment to both 22 MRSA 1711-C and 34-B
MRSA 1207 (Mental Health Confidentiality Law)
• Permits disclosure of mental health information
for care coordination and/or care management
of the client.
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22 MRSA 1711-C
• Disclosure without authorization to disclose
• A health care practitioner or facility may disclose, or when required by law
must disclose, health care information without authorization to disclose
under the circumstances stated in this subsection or as provided in
subsection 11. Disclosure may be made without authorization as follows:
• A. To another health care practitioner or facility for diagnosis, treatment or
care of individuals or to complete the responsibilities of a health care
practitioner or facility that provided diagnosis, treatment or care of
individuals, as provided in this paragraph.
• 1. For a disclosure within the office, practice or organizational affiliate of the
health care practitioner or facility, no authorization is required.
• 2. For a disclosure outside of the office, practice or organizational affiliate of
the health care practitioner or facility, authorization is not required, except
that in nonemergency circumstances authorization is required for health
care information derived from mental health services provided by:
▫
▫
▫
▫
a. A clinical nurse specialist licensed under the provisions of Title 32, chapter 31;
b. A psychologist licensed under the provisions of Title 32, chapter 56;
c. A social worker licensed under the provisions of Title 32, chapter 83;
d. A counseling professional licensed under the provisions of Title 32, chapter 119;
or
▫ e. A physician specializing in psychiatry licensed under the provisions of Title 32,
chapter 36 or 48.
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New language 22 MRSA 1711-C
• 5. This subparagraph does not prohibit the disclosure
without authorization of health care information covered
under this paragraph to a health care practitioner or health
care facility, or to a payor or person engaged in payment for
health care, for purposes of care management or
coordination of care.
• Disclosure of psychotherapy notes is governed by 45 Code of
Federal Regulations, Section 164.508(a)(2).
• A person who has made a disclosure under this
subparagraph shall make a reasonable effort to notify the
individual or the authorized representative of the individual
of the disclosure.
10
LD 534, Public Law 326, Mental Health
Law Amendment – Disclosure without
Authorization for Care Coordination
• Allows PHI to be disclosed to PCP
• Allows PHI to disclosed for payment for
healthcare
• Person/entity disclosing needs to make a
“reasonable effort to notify the individual or
personal representative of the disclosure.”
11
Questions posed previously
•
•
•
•
Still need an authorization?
Only for inpatient?
Need az if seen in outpatient setting?
Authorization/Release of information changes?
12
Mental Health Advance Directive
• Declaration Directing Medical Treatment
• Any person 18 years of age or older who suffers from
a psychotic condition but is competent and in a state
of remission at the time of execution may execute a
declaration directing that medical treatment,
including the administration of psychotropic drugs,
be provided at a time when the person has lapsed
and is not able to make decisions regarding medical
treatment. The provisions detailing the requrements
of the declaration are found in 23-B MRSA,
Chapter 8
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General PHI Protections: Access/ Right
to Review the Record
• HIPAA provides patients with access to their record (Right to
Inspect and Copy.) Under HITECH, that right will be expanded to
broad electronic access.
• Maine Law gives patients the general right to review their record
where no risk of harm. Currently, “reasonable time” to provide
access.
• Currently, HIPAA allows 30 days to provide access, Maine says
“reasonable time.”
• But what about patients with Mental Health treatment records?
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Rights Rules
• The recipient or the recipient's guardian has the right to
review the recipient's record at any reasonable time
upon request, including prior to its authorized release.
Such records shall be made available within three
working days of such request.
• Review of the care record shall occur under the
supervision of a designee of the Chief Administrative
Officer of the facility or program.
• In cases where there exists a reasonable concern of
possible harmful effect to the recipient if the review of
the record occurs, the Clinical Director or designee shall
supervise the review.
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Denial of Access – Rights Rules
• In cases where access of the guardian to the recipient's
record would create documented imminent danger to the
physical or mental well being of the recipient, the
professional may refuse to disclose a portion of or the
entire record to the recipient or guardian.
Written documentation shall be placed in the recipient's
record in the event that access to the record or any
portion of it is denied based an the above and the
reasons for denial.
• Note that HIPAA allows for a review/appeal process
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Right to Amend, Copy
• Patient/Client has the right to add a statement re: belief that
information is false, inaccurate or incomplete.
• Where individual wants a copy, permitted to receive one at
“the actual cost of production.” HITECH says “labor cost.”
• Maine: 22 MRSA 1711 (hospital record) NEW
• Charge= $5 for first page, 45 cents each additional page not to
exceed $250.
• Electronic record: actual costs of staff time to create or copy,
cost of supplies and postage. May not include retrieval fee,
cost of technology, of storage, maintenance. Cost not to
exceed $150.
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Mental Health Disclosure
• 34-B MRSA §1207. CONFIDENTIALITY OF INFORMATION
• B. The professional may disclose the information if in the
professional's judgment it is in the client's best interests
to make the disclosure and the professional determines
either that the client lacks the capacity to make health
care decisions or an emergency precludes the client from
participating in the disclosure.
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Mental Health Disclosure
• 34 MRSA 1207
• 5-A. Disclosure to family,
caretakers. Under the
following circumstances, a
licensed mental health
professional providing care to
an adult client may disclose to
a family member, to another
relative, to a close personal
friend or caretaker of the client
or to anyone identified by the
client, the client's health
information that is directly
relevant to the person's
involvement with the client's
care.
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Disclosure to Friends, Family
• A. If a client with capacity to
make health care decisions is
either present or available prior
to disclosure, the professional
may disclose the information:
• (1) When the client gives oral or
written consent;
• (2) When the client does not
object in circumstances in which
the client has the opportunity to
object; or
• (3) When the professional may
reasonably infer from the
circumstances that the client
does not object.
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Mental Health and Health Information
Exchanges
HealthInfoNet:
• Changes made to 22 MRSA Section 1711-C: allows Mental Health
PHI to go into the Health Information Exchange with an opt-in
process.
• Previously, mental health info was excluded from HealthInfoNet.
• Note: As you update your NPP, you will want to include your
HealthInfoNet membership, to let patients know about this material
change in how their PHI is being used and disclosed.
• Note: You are also mandated to provide HIN document informing
about the right to opt-out of exchange. Patient may opt-out via
internet, phone or through you (on paper.) Your practice has 2
business days to get that information to HIN.
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Request for Decedent Records
• HIPAA/HITECH allows family/friend involved in patient’s
care to obtain clinical record upon death unless reason to
believe that client would not have wanted that disclosure
• 34-B MRSA 1207 Mental health law does not grant that same
privilege, keeps information confidential
• C. Information may be disclosed if ordered by a court of
record, subject to any limitation in the Maine Rules of
Evidence, Rule 503;
• D. Nothing in this subsection precludes disclosure, upon
proper inquiry, of information relating to the physical
condition or mental status of a client to his spouse or next of
kin; [SMK: pertains to living client]
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Substance Abuse
• 42 CFR Part 2
• Requires federally funded program or provider
to safeguard substance abuse information
• Individual provider must hold him/herself out
as providing substance abuse treatment
• Can’t identify patient as having drug/alcohol
problem
• Okay to disclose general information that does
not pinpoint substance abuse treatment/service
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Additional Requirement for Disclosure
of Substance Abuse Treatment
Information
• Substance Abuse: Disclosures under 42 CFR 2
(“the Part 2 Rules”) require a statement that the
information is protected by federal law and may
not be disclosed without the specific
authorization of the patient.
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Specific Consent/Authorization
• 42 CFR Part 2 generally requires
specific authorization for disclosure
• Requires Notice to recipient that no
redisclosure is allowed without
specific written permission
• Limited exceptions include disclosure
through a Qualified Service
Organization Agreement (like a
Business Associate Agreement) which
requires the QSO to agree to be
“bound” by the Part 2 rules and resist
court intervention.
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Maine Law
• The Maine Substance Abuse Prevention and
Treatment Act makes records of treatment facilities
confidential and privileged. Title 5 M.R.S.A. §
20047.
• State insurance law requires confidential treatment
of all alcoholism and drug treatment patient records
by nonprofit hospitals. Title 24 M.R.S.A. § 2329.
• The state regulations for substance abuse treatment
programs require that the programs comply with the
federal confidentiality requirements. Me. Dept. of
Health & Hum. Serv., 14-118 CMR chapter 5.
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State HIV Confidentiality Statute
• Protects HIV test results or status
• 5 MRSA 19203-D Medical Records
• …“The release form must clearly state whether
or not the person has authorized the release of
that information. ”
27
HIV
• HIV confidentiality
Policy is required under
Maine Law
• The person must be
advised of the potential
implications of
authorizing the release of
that information. ”
28
Minors
• In Maine, a minor is defined as anyone less than
18 years of age.
• General Rule:
▫ Parents are authorized to consent to and refuse
treatment for minor children. Therefore, the parent
would also have access to and authority over the
minor’s protected health information.
▫ Legal Guardian – someone appointed by the court or
by a will following parent(s)’ death. This guardian
generally has the same rights the parent(s).
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Biological Parents Share Rights
• 19-A MRSA §1651.
Parents joint natural
guardians of
children
• The father and mother
are the joint natural
guardians of their minor
children and are jointly
entitled to the care,
custody, control,
services and earnings of
their children. Neither
parent has any rights
paramount to the rights
of the other with
reference to any matter
affecting their children.
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Divorce and Minors’ Records
• Divorce: Judgments generally will have a
statement regarding each parent’s access to
records and information relating to minor child.
• “[U]nless that access is found not to be in the
best interest of the child or that access is found
to be sought for the purpose of causing
detriment to the other parent.”
19-A MRSA § 1653(2)(D)(4)
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Foster Parents
• DHHS is the custodian
• Does foster parent have copy of the minor’s
MaineCare card?
• Permanency guardian – rights to guardian
• You may not know if person presenting as
parent is a “foster” parent
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Minors
• Where Maine law gives a
minor authority to consent
to health care and the minor
exercises that right, the
minor is entitled to control
the disclosure of that
information and must
authorize disclosure of
his/her health care
information in the same
manner as an adult. See,
22 MRSA § § 1505 (1)
22 MRSA § 1711-C(12)
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Minors Special Status
Certain classes of minors may access
and authorize health care services, including
where the minor is:
• Emancipated by the court
• Living separately, not financially dependent on
parents for > 6 months
• Married
• Currently or formerly in the military
• The minor mother of child. Minor may make
decisions for her child, but not necessarily for
herself unless within special category of services.
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Minors May Consent To Certain Care and
Treatment
• A minor may consent to the
following care by Maine law:
• Blood donation at age 17
• Sexual assault forensic exam
• Treatment for sexually transmitted
diseases
• Treatment for abuse of drugs or
alcohol
• Psychological services to treatment
for emotional or psychological
problems under Maine law. See,
e.g., 22 MRSA § 1502
• Treatment associated with the
abuse of drugs or alcohol
• Family planning services
35
Minors
• 22 MRSA §1908. Minors
• Family planning services may be furnished to
any minor who is a parent or married or has the
consent of his or her legal guardian or who may
suffer in the professional judgment of a physician
probable health hazards if such services are not
provided.
36
Exceptions to Minors’ Confidentiality
• Exceptions to this general rule:
▫ Cases of suspected abuse or neglect - your
organization is a mandatory reporter
▫ Threat by the minor to self or others – clear and
substantial evidence
▫ Where provider believes failure to contact
parent/guardian would seriously jeopardize
patient or patient care, [provider judgment]
▫ Billing or health insurance claims process
37
Parental Delegation of Authority re: Minors
• In Maine there is a law that provides for the delegation of powers by
a parent or guardian where the parent or guardian is expected to be
unavailable. Title 18-A Section 5-104 provides:
• "A parent or guardian of a minor or incapacitated person, by a
properly executed power of attorney, may delegate to another
person, for a period not exceeding 6 months, any of that parent's or
guardian's powers regarding care, custody, or property of the minor
child or ward, except the power to consent to marriage or adoption
of a minor ward. A delegation by court appointed guardian shall
become effective only when the power of attorney is filed with the
court."
Maine law does not explicitly require that this document be formally
witnessed or notarized.
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Minors
• Parental notification. A health care
practitioner or health care provider may notify
the parent or guardian of a minor who has
sought health care under this chapter if, in the
judgment of the practitioner or provider, failure to
inform the parent or guardian would seriously
jeopardize the health of the minor or would
seriously limit the practitioner's or provider's
ability to provide treatment
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Minors and Billing
• When a minor who has the right to consent to
his or her own treatment presents for care, a
provider should assure they are asked how they
wish to pay for their treatment.
• Minors should always be informed that if their
chart records their parents’ insurance and the
insurance is billed for the visit, their parents will
receive notification from the insurer that the
visit occurred.
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Questions?