Recently, the U.S. Department of Health and Human Services (“HHS”) released guidance on the HIPAA Privacy Rule and sharing information related to mental health treatment. While the information provided in the guidance was not new, HHS provided concise, practical advice on sharing protected health information of minors and individuals receiving mental health treatment.
HHS reiterated that a health care provider is permitted to communicate with a patient’s family, friends, or others who are involved in the patient’s care about the patient’s protected health information in a limited number of circumstances. Typically, upon receiving treatment at a hospital or other health care entity, patients are provided an opportunity to designate other individuals, if any, who may be contacted with information regarding the patient’s health care treatment. At other times, patients may indicate their consent, express or implied, to a provider sharing information with family or friends who are present in a treatment room with the patient when the provider discusses the patient’s health care treatment. Finally, when a patient is not present or is incapacitated, HHS acknowledged that a health care provider can share the patient’s information with family, friends, or others involved in the patient’s care or payment of care as long as the provider has determined, based on his professional judgment, that it is in the patient’s best interest to disclose the information. However, for disclosures to individuals other than the patient, a provider should always limit such disclosure to the protected health information that is directly related to that individual’s involvement in the patient’s care or payment for care.
HHS also noted that special considerations are given under HIPAA to certain protected health information regarding mental health treatment. Subject to a few exceptions, an individual must give a separate authorization for disclosure of psychotherapy notes even when the psychotherapy notes are being disclosed to another health care provider. The Privacy Rule refers to psychotherapy notes as those notes recorded by a mental health professional during a private counseling session or a group, joint, or family counseling session. Psychotherapy notes are kept separate from the remainder of a patient’s medical records. These notes, however, may be disclosed without authorization if required by law, such as in the case of mandatory reporting of abuse or mandatory “duty to warn” situations in which threats of serious and imminent harm are made by the patient. In situations where a health care provider believes a patient may harm himself or others, the Privacy Rule permits the provider to disclose necessary information about the patient to law enforcement, family, or other persons when the threat of serious and imminent harm is present and the health care provider believes in good faith that a warning is necessary to prevent or lessen the imminent threat to the health or safety of the patient or others.
In its guidance, HHS also addressed when a patient is considered “incapacitated” under the Privacy Rule such that the patient does not have the capacity to agree or object to a health care provider sharing information with the family member. HHS stated that the permission to make disclosures in a patient’s best interests “clearly applies when a patient is unconscious.” Nonetheless, it noted that there may be other situations when a health care provider, using his professional judgment, determines the patient does not have the capacity to agree or object to the sharing of protected health information and that the sharing is in the patient’s best interests. For example, when a patient is suffering from temporary psychosis or is under the influence of alcohol or drugs, a patient may not be considered to have the capacity to make a decision regarding disclosures. However, in these circumstances, HHS encourages the physician to take the patient’s prior expressed preferences regarding disclosures of their information into consideration. Further, if and when a patient regains capacity, the provider should offer the patient the opportunity to decide whether future disclosures would be authorized.
To review the complete guidance from the HHS, click here.