OCR Releases Updated Guidance on Sharing Behavioral Health and Substance Abuse Records
The Office for Civil Rights (OCR) released long-awaited guidance related to the sharing of mental health and substance abuse records in accordance with the 21st Century Cures Act. In doing so, the Department of Health and Human Services (HHS) updated its consumer– and provider-facing HIPAA websites with fact sheets and FAQs on the new changes. Additionally, the guidance provides HIPAA-related guidelines for disclosing information during the treatment or prevention of opioid overdoses.
The new guidance allows providers to use their own judgment when it comes to sharing information about a patient’s mental health status with friends and family if the intention is to prevent further harm. For example, if a patient has discontinued a medication that makes the physician concerned that the patient may harm themselves or others, the physician may call friends or family and notify them if the patient doesn’t have the capacity to approve or object.
“Where a patient is not present or 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, as long as the health care provider determines, based on professional judgment, that doing so is in the best interests of the patient. Note that, when someone other than a friend or family member is involved, the health care provider must be reasonably sure that the patient asked the person to be involved in his or her care or payment for care,” the guidance states.
Another frequently asked question regarding HIPAA is: “Does a parent have a right to receive a copy of psychotherapy notes about a child’s mental health treatment?”
According to the new guidance, the answer is no.
“The Privacy Rule distinguishes between mental health information in a mental health professional’s private notes and that contained in the medical record. It does not provide a right of access to psychotherapy notes, which the Privacy Rule defines 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,” the guidance states.
However, the guidance goes on to assert that “parents generally are the personal representatives of their minor child and, as such, are able to receive a copy of their child’s mental health information contained in the medical record, including information about diagnosis, symptoms, treatment plans, etc. Further, although the Privacy Rule does not provide a right for a patient or personal representative to access psychotherapy notes regarding the patient, HIPAA generally gives providers discretion to disclose the individual’s own protected health information (including psychotherapy notes) directly to the individual or the individual’s personal representative.”
Changes for the Opioid Crisis
In light of massive spikes in accidental, fatal overdoses associated with opioid abuse, OCR gives providers the ability to share more information with a patient’s friends or family in emergency or dangerous situations without the patient’s consent.
Circumstances where this is allowed, according to the guidance, include:
• Sharing health information with family and close friends who are involved in the care of the patient if the provider determines that doing so is in the best interests of an incapacitated or unconscious patient and the information shared is directly related to the family’s or friend’s involvement in the patient’s healthcare or payment of care.
• Informing persons in a position to prevent or lessen a serious and imminent threat to a patient’s health or safety. For example, a doctor whose patient has overdosed on opioids is presumed to have complied with HIPAA if the doctor informs family, friends, or caregivers of the opioid abuse after determining, based on the facts and circumstances, that the patient poses a serious and imminent threat to his or her health through continued opioid abuse upon discharge.