Session #
October __, 2011
0:00 AM
Legal and Ethical Foundations in
Integrated BH Setting:
Foundations for Best Practices
Sandra Rose, PhD, Director of BH: Goodwin Community Health Center, NH
Cathy Hudgins, PhD, LPC, LMFT, Asst Prof. , Counselor Education, Radford U. VA
Peter Fifield, MS, BH Consultant, Families First Health and Support Center, NH
Steve Arnault, MA, VP of Quality, Compliance and Integrated Care, CLM, NH
Collaborative Family Healthcare Association 13th Annual Conference
October 27-29, 2011 Philadelphia, Pennsylvania U.S.A.
Methodology
• Phone survey
– Agencies
– Stake-holders
• Content analysis
– State law websites
– Integrated care literature
– Integrated systems manuals
– Conference presentations
Objectives
1. Identify federal and state laws relating to consent and
confidentiality in integrated settings.
2. Relay key interpretations of federal and state laws governing
confidentiality and consent as they apply to integrated
settings.
3. Identify sample practices and trend in the field with respect
to informed consent and confidentiality integrated settings.
Definitions
• Informed Consent*: A communication
process between a patient and a health care
provider whereby information is exchanged
thereby allowing for the provider to adjust
the recommended treatment to meet the
needs of the pt, and for the pt to understand
the risks and benefits of the tx, and make a
decision, without duress, to agree with the
treatment.
*Attorney Barbara Mahoney, NH, October, 2011
Definitions
• General consent: A signed statement
demonstrating authority to release
information for treatment, billing or health
care operations. Should be obtained prior to
the treatment initiation or at first available
opportunity.
• Release: The document authorizing release of
confidential health information.
Distinctions:
BH/MH/SUD Services
Health Center
Specialty
Care
BHP
MHP
Brief,
consultant role
Traditional
psychotherapy
SUD
SUD
Health Care Home
MH
BH
SA
We: can be any of above.
A delicate balance:
Pt Rights including privacy and
informed decision making
Efficient Medical flow
Comprehensive Collaboration
Treatment Efficacy
What Makes Us Different and How
Does it Impact on Treatment?
Confidentiality?
Informed Consent?
Are We
Different Than PCPs?
Kind of
Information
• More
sensitive
• Stigma
• Risks of
Disclosure
Federal/State
Laws/Ethics
• Informed
Consent?
• Disclosure?
We are BH, MH and SUDS
Pt
Expectations
• Privacy?
• Role?
What governs confidentiality?
HIPAA Privacy
Law
42CFR:Part 2
State Statute and Case Law
Regulations for
(Berg vs. Berg)
Psychotherapy
Federal
Federal
State licensing
laws and
regulations
Federal or State
Mandates
safeguards for
protection of
general health
information by
health care
providers(Protected
Health
Information)
Mandates
safeguards for
information
specific to to
alcohol and drug
diagnosis,
treatment and
referral.
Mandates
information that
is generated by
communications
with those in
practice
governed under
the state
licensing law.
Rulings made in
court that may
impact on how
existing law is
interpreted or be
used as
precedents in
legal cases that
are similar.
HIPAA: Psychotherapy Notes
• Psychotherapy Notes: 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: exclusions
• The definition in the privacy rule specifically
excludes information pertaining to 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.
What governs confidentiality?
HIPAA Privacy
Law
42CFR:Part 2
State Statute and Case Law
Regulations for
(Berg vs. Berg)
Psychotherapy
Federal
Federal
State licensing
laws and
regulations
Federal or State
Mandates
safeguards for
protection of
general health
information by
health care
providers(Protected
Health
Information)
Mandates
safeguards for
information
specific to to
alcohol and drug
diagnosis,
treatment and
referral.
Mandates
information that
is generated by
communications
with those in
practice
governed under
the state
licensing law.
Rulings made in
court that may
impact on how
existing law is
interpreted or be
used as
precedents in
legal cases that
are similar.
42CFR Part 2
Imposes restrictions on the
disclosure and use of
patient SUD information.
Requires notice of rights
regarding the law to pts.
Prohibits re-disclosure of
information received from
covered “programs”
Applicability: Who is Covered?
1. Federally funded.
2. A “Program” is defined as:
• A provider (other than medical) who holds itself out
as providing, and provides alcohol or drug diagnosis,
treatment or referral.
• An identified unit within a general medical facility
which holds itself out as providing, and provides
alcohol or drug diagnosis, treatment or referral.
• Medical staff in a general medical facility whose
primary function is the provision of alcohol or drug
dx, tx, or referral and identified as such providers.
Agency: Legal Action Center
• Generalist BH providers not covered.
• Re-release of protected info received from
“programs” is prohibited even by medical
providers.
• Specific “fresh” authorizations are required
when releasing protected info out of agency.
• You can’t bill SUD diagnoses without specific
authorization.
Personal communication, September 2011: Attorney Katie
O’Neil, Senior VP and HIV/AIDS Projects Director
Agency Interpretations:
National Council
• No re-disclosure of information received by a
covered “program” even if received by a
primary care provider unless that information
was already known to the medical provider
Personal communication: M. Lardiere, VP, HIT and Stategic Development,
National Council, Oct, 2011
Federal Law: Are we Different?
Confidentiality
HIPAA
Separated
Psychotherapy
Part 2
SUD
“program”?
Notes?
Yes: fresh release
Yes:
No: General
consent for Tx
payment , health
care operations
Part 2 fresh
release *
* All health providers must obtain fresh release for info received by “program”
What governs confidentiality?
HIPAA Privacy
Law
42CFR:Part 2
State Statute and Case Law
Regulations for
(Berg vs. Berg)
Psychotherapy
Federal
Federal
State licensing
laws and
regulations
Federal or State
Mandates
safeguards for
protection of
general health
information by
health care
providers(Protected
Health
Information)
Mandates
safeguards for
information
specific to to
alcohol and drug
diagnosis,
treatment and
referral.
Information that
is generated by
communications
with those in
practice
governed under
the state
licensing law.
Rulings made in
court that may
impact on how
existing law is
interpreted or be
used as
precedents in
legal cases that
are similar.
State Ex: NH Confidentiality Law
OCCUPATIONS AND PROFESSIONS CHAPTER 330-A MENTAL HEALTH
PRACTICE Section 330-A:32 330-A:32 Privileged Communications. – The
confidential relations and communications between any person licensed
under provisions of this chapter and such licensee's client are placed on
the same basis as those provided by law between attorney and client,
and nothing in this chapter shall be construed to require any such
privileged communications to be disclosed, unless such disclosure is
required by a court order. Confidential relations and communications
between a client and any person working under the supervision of a
person licensed under this chapter which are necessary and customary
for diagnosis and treatment are privileged to the same extent as though
those relations or communications were with the supervising person
licensed under this chapter, unless such disclosure is required by a court
order. This section shall not apply to hearings conducted pursuant to
RSA 135-C:27-54 or RSA 464-A.Source. 1998, 234:1, eff. Oct. 31, 1998.
States with Privilege Statutes
At least thirteen (13) states have PsychologistClient Privileged Communications Statutes that
are explicitly modeled on Attorney-Client
Privilege: Alabama, Arizona, Arkansas, Georgia,
Idaho, Kansas, Montana, New Hampshire, New
Jersey, New York, Pennsylvania, Tennessee,
Washington.
(Center for Ethical Practice)
Legal Opinion: Risk Management
for Confidential Communications
• In general, the risk of a lawsuit is higher the
greater the sensitivity of the information
(Abortion, HIV/AIDs, SUD, Mental Health)
• Expectations of confidentiality: Did the
patient reasonably anticipate that the
provider would release the information based
on a general consent?
Attorney Priscilla Kimball, personal communication, Oct, 2011
State Laws: Confidentiality: Are
We Different?
BHP: Billing under • Likely no if no sensitive
H and B codes and info: Untested for those
licensed under MH laws
keeping progress
but practicing as BH.
notes?
MH, SUD and/or
BH billing under
Psychotherapy
Codes?
• Yes if sensitive
information and/or
covered Part 2 provider
Federal: Are We Different?
Informed Consent
HIPAA
Part 2
SUD?
No: All Need
HIPAA notice
Yes: Need
Part 2 Notice
State Law: Are We Different?
Generic State Bill
of Rights
All
Specific to Licensed
BH/MH?SA
Professions?
e.g., NH MH
Bill of Rights
Pt must be informed: Ethical codes,
provider credentials, tx is safe and
effective, sex contact is a violation, office
policies re. billing, fees.
NH: RSA330-A:15
• Mental Health Client Bill of Rights. – The
board shall develop a model statement of the
patient's mental health rights based on the
code of ethics of each licensed professional
association and distribute it to all
practitioners licensed under this chapter. A
copy of the patient's mental health rights
shall be posted in a prominent location in the
office of the mental health practitioner.
BH Statutes on Informed Consent
• Maine, Louisiana, Missouri, Montana, New
Hampshire, California, Wisconsin, Georgia,
Colorado, Alabama, and Nevada.
State Law: Are We Different?
Informed Consent
BH code?
Untested
BH Consulting
Only?
Licensing Law
Psychotherapy?
CPT therapy
codes? Yes (e.g.,
NHRSA:A15)
Yes, (e.g., NH
RSA:A:15)
Resources
• LAC: Part 2 Law, HIPAA and Part2 forms
downloadable and book Confidentiality of
Communications (LAC) www.lac.org
• SAMHSA: HIPAA info, FAQs on Part 2, the
actual Part 2 law, and “The Confidentiality of
Alcohol and Drug Abuse Patient Regulation
and the HIPAA Privacy Rule: Implications for
Alcohol and Substance Abuse Programs, 2004”
at http://www.samhsa.gov/healthPrivacy
• sandycrose@comcast.net
Session Evaluation
Please complete and return the
evaluation form to the classroom monitor
before leaving this session.
Thank you!