Mental Health HIPAA Protections
Author: David Johnson
Mental health is a touchy subject when it comes to health information sharing. The Health Information Portability and Accountability Act (HIPAA) regulates patient information sharing under the HHS Office of Civil Rights (OCR). One provision of HIPAA, the privacy rule, indicates that patients must authorize use of personal information beyond what is not considered private.
The OCR has created a commentary on the role of the privacy rule in mental health. In this document, they address the rights of a patient to share their information.
“In all cases, disclosures to family members, friends, or other persons involved in the patient’s care or payment for care are to be limited to only the protected health information directly relevant to the person’s involvement in the patient’s care or payment for care.”
On the other hand, the OCR points out that information sharing is contingent upon a medical professional decision that it is in best interest of the patient. For mental health conditions HIPAA acts the same aside from one provision that indicates special protection on psychotherapy notes. The OCR considers these notes are relevant only to the therapist using them. Disclosure may follow consent of the patient or when there is an eminent threat to the patient.
Additionally, patients must have an opportunity to object to a mental status disclosure to friends and family members, unless there is the potential for a developing emergency. It is in the best interest of the medical provider to maintain trust of patient to disclose sensitive information only when given a chance to appeal. And, this patient right is protected by HIPAA.
Some situations in which a medical provider may need to make a judgement call include:
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Unconsciousness
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Psychosis
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Drug or Alcohol Influence
There are several instances where a medical provider may believe that certain disclosures are necessary when they may not be. The OCR lists several scenarios in their commentary indicating recommended judgement calls on specific examples:
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A medical professional may not disclose that a patient has not stopped taking medication unless the professional feels in good faith that the patient may be a threat to others or themselves.
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State law dictates whether a child may seek mental health services and a parent may or may not be privy to information, but it does not restrict a parent from seeking the information for their own child if the individual is a minor.
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Medical professionals may only release information to law enforcement personnel as a covered entity “for the purpose of locating or identifying a suspect, fugitive, material witness, or missing person.”
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If a provider believes that a personal representative (via power of attorney) has engaged in violence, abuse, or neglect, they may choose not to disclose protected health information.
With that being said, the decisions made by medical professionals to disclose protected health information should be carefully deliberated. For instance, patients who have information disclosed about mental status may be subject to judgement made by family members, friends and employers. There are still many mental health stigmas. The patient comes before all else and by disclosing information, a professional could be causing unintended harm.
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