What does HIPAA mean for the counselor in terms of confidentiality, informed consent and required reporting of protected health care information? The HIPAA final rule spans 500 and requires a separate course to thoroughly cover these regulations. The Department of Health and Human Services (HHS) provides some practical information for mental health providers on sharing health care information following HIPAA (HHS, 2022): HIPAA Privacy Rule and Sharing Information Related to Mental Health. The following summary of guidance from HHS (2022) provides answers to commonly asked questions to assist mental health providers in following HIPAA: 1. Does HIPAA allow a health care provider to communicate with a patient’s family, friends, or other persons who are involved in the patient’s care? Yes. Where a 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 the patient has involved in his or her health care or payment for care, so long as the patient does not object. 2. Does HIPAA provide extra protections for mental health information compared with other health information? Generally. One exception to this general rule is for psychotherapy notes, which receive special protections. The Privacy Rule defines psychotherapy notes as notes recorded by a health care provider who is a mental health professional documenting or analyzing the contents of a conversation during a private counseling session or a group, joint, or family counseling session and that are separate from the rest of the patient’s medical record. A notable exception exists for disclosures required by other law, such as for mandatory reporting of abuse, and mandatory “duty to warn” situations regarding threats of serious and imminent harm made by the patient. * 3. When does mental illness or another mental condition constitute incapacity under the Privacy Rule? Section 164.510(b)(3) of the HIPAA Privacy Rule(HHS,2016a) permits a health care provider, when a patient is not present or is unable to agree or object to a disclosure due to incapacity or emergency circumstances, to determine whether disclosing a patient’s information to the patient’s family, friends, or other persons involved in the patient’s care or payment for care, is in the best interests of the patient. This may include circumstances in which a patient is suffering from temporary psychosis or is under the influence of drugs or alcohol. 4. If a health care provider knows that a patient with a serious mental illness has stopped taking a prescribed medication, can the provider tell the patient’s family members? So long as the patient does not object, HIPAA allows the provider to share or discuss a patient’s mental health information with the patient’s family members. See 45 CFR 164.510(b). If the provider believes, based on professional judgment, that the patient does not have the capacity to agree or object to sharing the information at that time, and that sharing the information would be in the patient’s best interests, the provider may tell the patient’s family member. 5. At what age of a child is the parent no longer the personal representative of the child for HIPAA purposes? HIPAA defers to state law to determine the age of majority and the rights of parents to act for a child in making health care decisions, and thus, the ability of the parent to act as the personal representative of the child for HIPAA purposes. See 45 CFR 164.502(g). (HIPAA, 2016a) ** 6. What options do family members of an adult patient with mental illness have if they are concerned about the patient’s mental health and the patient refuses to agree to let a health care provider share information with the family? The HIPAA Privacy Rule permits a health care provider to disclose information to the family members of an adult patient who has capacity and indicates that he or she does not want the disclosure made, only to the extent that the provider
perceives a serious and imminent threat to the health or safety of the patient or others and the family members are able to lessen the threat. 7. Does HIPAA permit a doctor to contact a patient’s family or law enforcement if the doctor believes that the patient might hurt herself or someone else? Yes. Specifically, when a health care provider believes in good faith that such a warning is necessary to prevent or lessen a serious and imminent threat to the health or safety of the patient or others, the Privacy Rule allows the provider, consistent with applicable law and standards of ethical conduct, to alert those persons whom the provider believes are reasonably able to prevent or lessen the threat. These provisions may be found in the Privacy Rule at 45 CFR § 164.512(j). 8. Does having a health care power of attorney (POA) allow access to the patient’s medical and mental health records under HIPAA? Generally, yes. If a health care power of attorney is currently in effect, the named person would be the patient’s personal representative. “Personal representatives,” as defined by HIPAA, are those persons who have authority, under applicable law, to make health care decisions for a patient. 9. What constitutes a “serious and imminent” threat that would permit a health care provider to disclose PHI without the patient’s authorization or permission? HIPAA expressly defers to the professional judgment of health professionals in making determinations about the nature and severity of the threat to health or safety posed by a patient. Health care providers may disclose the necessary protected health information to anyone who is able to prevent or lessen the threatened harm, including family, friends, caregivers, and law enforcement, without a patient’s permission. 10. If an adult patient who may pose a danger to self, stops coming to psychotherapy sessions and does not respond to attempts to make contact, does HIPAA permit the therapist to contact a family member to check on the patient’s well- being even if the patient has told the therapist that they do not want information shared with that person? Yes, under two possible circumstances: 1. Given that the patient is no longer present, if the therapist determines, based on professional judgment, that there may be an emergency and that contacting the family member of the absent patient is in the patient’s best interests; or 2. If the disclosure is needed to lessen a serious and imminent threat and the family member can avert or lessen the threat. *According to the Texas Health and Safety Code §611.004(Texas. gov,2021): A mental health professional may disclose information only to medical or law enforcement personnel if the professional determines that there is a probability of imminent physical injury by the patient to the patient or others or there is a probability of immediate mental or emotional injury to the patient. ** According to the Texas the Family Code the child is a minor until the age of 18 and would need the consent of a parent or guardian to receive counseling except in the following cases: 1. Texas Family Code Chapter 32(Texas.gov., 2015) Section 32.003 allows counseling without consent for individuals under 18: ● on active duty in the arm forces ● 16 years of age, emancipated, living apart from parents, guardians, or conservators, or financially independent. ● unmarried and pregnant and consents to treatment, other than abortion, or unmarried, parent of a child with actual custody ● confined in a facility operated by the Texas Department of Criminal Justice
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Book Code: PCTX1324
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