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HHS Issues Guidance on Sharing Mental Health Information




by:
Jennifer M. Forde
Foley & Lardner LLP - Washington Office

 
March 6, 2014

Previously published on February 27, 2014

The U.S. Department of Health and Human Services (HHS) recently issued guidance on when it may be permissible under the Health Insurance Portability and Accountability Act (HIPAA) for health care providers to share information related to a patient’s mental health, HIPAA Privacy Rule and Sharing Information Related to Mental Health. Of note, the new guidance clarified instances where a health care provider may communicate with a patient’s family members or friends regarding a patient’s mental health, including the sharing of a minor’s mental health information with the minor’s parents.

In the new guidance, HHS clarified that when the patient is present and has the capacity to make health care decisions, health care providers may communicate with a patient’s family members, friends, or other persons that the patient has involved in his or her health care or payment for care, so long as the patient does not object.

Such a communication may occur, for instance, when a patient invites his or her family member to the patient’s treatment session, and the family member is present in the treatment room with the patient. However, the health care provider may share or discuss only the information that the person involved needs to know about the patient’s care or payment for care. Otherwise, if the patient has capacity and objects to the provider sharing information, the provider may share the information only if doing so is consistent with applicable law and standards of ethical conduct, and the provider has a good faith belief that the patient poses a threat to the health or safety of others, and the person to whom information is disclosed is reasonably able to prevent or lessen the threat.

HHS further clarified that when a patient is not present or the patient is incapacitated, a health care provider may share the patient’s information with family, friends, or others involved in the patient’s care or payment for care, so long as the health care provider determines, based on professional judgment, that doing so is in the best interests of the patient. However, if the provider discloses such information to someone other than the patient’s friend or family member, the provider must be reasonably sure that the patient asked for that individual to be involved the patient’s care or payment for care. The provider should take into account any prior expressed preferences of the patient regarding disclosures of the patient’s information.

Additional protections are applied to psychotherapy notes, which are defined as notes kept separate from the rest of the patient’s medical record that document or analyze conversations held during certain types of counseling sessions. With few exceptions, the HIPAA Privacy Rule requires patient authorization prior to a disclosure of psychotherapy notes for any reason. One notable exception exists for disclosures required by other law, such as a “duty to warn” imposed by state law when there is a threat of serious and imminent harm made by the patient.

The Mental Health Treatment of Minors

HHS’s new guidance also clarified issues relating to the mental health treatment of minors. With some exceptions, a parent, guardian, or other person acting in loco parentis is the personal representative of the minor child, and a health care provider is oftentimes thus permitted to share patient information with the personal representative under the HIPAA Privacy Rule. The guidance clarified, however, that a minor’s personal representative does not have the right to receive a copy of psychotherapy notes about a child’s mental health treatment, though providers may have permissive discretion to disclose this information to the minor’s personal representative.

HHS’s efforts to clarify when it may be permissible to share mental health information are consistent with the Obama Administration’s efforts to address barriers under HIPAA that may prevent the disclosure or reporting of mental health information.

We will continue to monitor for additional clarifications of HHS’s position on this important issue.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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Author
 
Jennifer M. Forde
Practice Area
 
Health Care
 
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