there is a probability of physical injury to others. Texas does not extend the duty to warn to third parties directly. This is considered as a permissive standard because the mental health practitioner is permitted to contact medical or law enforcement personnel in cases of probability of imminent physical injury to others. They cannot directly warn the third party under the state’s confidentiality law. The Texas Statute Health. and Safety Code Chapter 181, Medical Records Privacy Sec. 181.001 (Tex.gov, 2015).
Definitions. (a) Unless otherwise defined in this chapter, each term that is used in this chapter has the meaning assigned by the Health Insurance Portability and Accountability Act and Privacy Standards. (2) “Covered entity” means any person who: (A) for commercial, financial, or professional gain,
(B) comes into possession of protected health information; (C) obtains or stores protected health information under this chapter; or (D) is an employee, agent, or contractor of a person described by Paragraph (A), (B), or (C) insofar as the employee, agent, or contractor creates, receives, obtains, maintains, uses, or transmits protected health information. (2-a) “Disclose” means to release, transfer, provide access to, or otherwise divulge information outside the entity holding the information. (3) “Health Insurance Portability and Accountability
monetary fees, or dues, or on a cooperative, nonprofit, or pro bono basis, engages, in whole or in part, and with real or constructive knowledge, in the practice of assembling, collecting, analyzing, using, evaluating, storing, or transmitting protected health information. The term includes a business associate, health care payer, governmental unit, information or computer management entity, school, health researcher, health care facility, clinic, health care provider, or person who maintains an Internet site.
Act and Privacy Standards” means the privacy requirements in existence on September 1, 2011, of the Administrative Simplification subtitle of the Health Insurance Portability and Accountability Act of 1996. HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT AND PRIVACY STANDARDS
Counselors and other mental health care providers are considered covered entities, so they are required to follow Health Insurance Portability and Accountability Act (HIPAA) regulations to protect the privacy and security of health care information. The TAC references HIPAA regulations that must be followed throughout the statutes. HIPAA covers the electronic transmission of protected health care information. HIPPA was modified and strengthened in 2013 by the addition of the Health Information Technology for Economic and Clinical Health (HITECH) Act. 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
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Book Code: PCTX1325
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