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March 8, 2016

The HIPAA debate: When can providers share patients' mental health information?

Daily Briefing

Confusion over federal patient privacy laws can keep providers from sharing potentially lifesaving information about adult mental health patients with family caregivers—and stakeholders are split on how to address the issue, Liz Szabo reports for USA Today.

Recent research suggests family support is a critical part of psychiatric care. But HIPAA concerns can make clinicians reluctant to involve family members in care planning and decision making, even when they are legally allowed to do so, says Ron Manderscheid, executive director of the National Association of County Behavioral Health and Developmental Disability Directors.

For instance, Szabo writes that one woman went to the ED in search of her brother, who has bipolar disorder and intellectual disabilities and often wanders from their home. Hospital staff declined to say whether her brother was in the hospital, incorrectly saying that doing so would violate HIPAA, according to Szabo.

The law also can cause difficulties for providers seeking consults on their patient's care, says Jeffrey Lieberman, chair of psychiatry at the Columbia University College of Physicians and Surgeons and director of the New York State Psychiatric Institute.

Despite the confusion and concerns over the privacy law, data show fines for providers' HIPAA-related offenses are uncommon. Since 2003, HHS has fined providers 30 times for a total of $32.3 million. Szabo writes, "None of [those] fines involved the care of people with mental illness or their caregivers."

New HIPAA rules will impose penalties for privacy leaks

In an effort to provide more clarity, HHS in 2014 issued guidance detailing when health care providers can and can't share information with families. Separate bills introduced in the House by Rep. Doris Matsui (D-Calif.) and Tim Murphy (R-Pa.) would direct HHS to write the guidance into regulation, which Szabo says would give it "the force of law."

Legislative approaches

Murphy's bill would go a step farther and change HIPPA directly, creating a "special exception" to privacy rules in some circumstances, Szabo writes. Under his bill, health providers could disclose a patient's diagnosis, treatment plan, and other information to a "responsible caregiver" if it would help "protect the health, safety or welfare of the individual or general public."

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The American Psychiatric Association and other prominent groups have endorsed Murphy's bill. However, the NAACP and American Civil Liberties Union have expressed concerns about the privacy impact of modifying HIPAA. And some advocates worry that weakening the law could prevent patients from getting the best treatment possible.

"If people don't feel like they have privacy, they aren't going to be forthcoming when they see a medical professional," warns Jennifer Mathis, director of programs at the Bazelon Center for Mental Health Law. "Privacy rights are critical for people with mental illness, just as they are for anyone else, to ensure that they get good treatment."

Mathis notes that changing HIPAA is not necessary to increase cooperation between the families of patients with mental health issues and providers. For instance, she says health insurance companies could contractually require providers to work with families.

Meanwhile, legislation from Matsui and Sen. Chris Murphy (D-Conn.) "would provide $5 million this year, along with additional funding in future years, to educate health providers about HIPAA," Szabo writes (Szabo, USA Today, 2/26).

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