Lega gal Issues in n Inf nformation n Sharing g Bet etween een Beha havioral Health h and nd Cri rimina nal Justi tice ce Syst ystems John Petrila, J.D., LL.M. Vice President of Adult Policy jpetrila@texasstateofmind.org
Qu Quest stion 1: 1: Two officers responding to a call find a person threatening to commit suicide or harm his mother. One officer calls the local mental health center and asks if the person is currently a patient at the Center. Can the Center can give the officer this information Under federal law? T or F Under state law? T or F 2
Qu Quest stion 2 2 Treatment staff from the jail call the local hospital to ask for the name of the medication a recently booked person is taking. Can the hospital can provide this information Under federal law? T or F Under state law? T or F 3
Qu Quest stion 3 3 Your client appears to lack the capacity to make a decision about treatment and a family member is asking you to provide her with detail about the client’s current medication. Can you provide this information? Under federal law? T or F Under state law? T or F 4
To Today • Some basic facts about federal and state law including some recent changes especially in light of the Parkland School shooting • A framework for thinking about data sharing • Some examples from the future 5
Lif ife e with ithout ac acronym yms is is har ardly w ly worth th liv livin ing… HIPAA 42 CFR Part 2 HMIS CJIS FERPA State Law 6
Definitiona nal i issu ssues… Privacy Act: “personally identifiable information” • HIPAA: “protected health information” • FERPA: “personally identifiable information” • 42 CFR Part 2: “any information…relating to a • patient received or acquired by a federally assisted acohol or drug program” HMIS: “protected personal information” • FL 394.4615: A clinical record shall be maintained • for each patient... 7
Elvis i is s alive and and rai aisi sing HI HIPAA quest stions ons…. …. Birthday parties in nursing homes in New York and Arizona have been canceled for fear that revealing a resident’s date of birth could be a violation. Patients were assigned code names in doctor’s waiting rooms – say “Zebra” for a child in Newton, Mass., or “Elvis” for an adult in Kansas City, Mo. – so they could be summoned without identification. 8
HIP IPAA: Wh What at an and Wh Why? • Federal regulation Misunderstanding of • the law effective 2003 Confusion over when • National standard for • law applies privacy and security of protected health Misplaced fear of • information liability Sets a floor and states • can have stricter laws A c cou ouple of of bi big i issu ssues: • 9
How To F Fig igure I e It t All ll Ou Out… t… 10
Doe oes “ s “the the law” l let t me discl sclose? I It t depend nds…Crea eating a g a fr framework • Why do you want to share information? • What type of information do you want to share? • Who do you want to share it with? • Who decides if you will share it? 11
In th thinking abou g about the t these se i issu ssues es… • Does the law require a particular disclosure or prohibit a particular disclosure? • May I disclose something? • Should I make the disclosure? 12
Why Do Do You W Wan ant t to Sh Shar are Informati tion? Identify a target population? • Identify geographic areas of greatest impact? • Evaluate program outcomes? • Improve services at the point of intervention? • Data analytics? • 13
A Cincinna nati ti E Exam ample 14
What t types of i of inf nfor ormation? • Information that does not identify individuals? • Information that does identify individuals? • Information that might identify a person? • Health information? • Housing status? • Demographics? 15
Wh Who Do Y o You Want ant to S o Shar hare it W t With th? • Law enforcement on the street? • The jail? • Probation officers? • A community treatment provider? • A hospital emergency department? • A researcher? 16
Se Sequentia ial I l Intercept Mo Model an l and Dat Data a Sh Shar arin ing Blah Blah Blah 17
Un Under HI HIPAA, C Covered E Entit itie ies Ma May Dis Disclo lose P PHI HI Wit ithout C Consent A Health Care A Health Care A Health Plan Provider Clearinghouse This includes This includes: This includes entities providers such as: • Health insurance that process • Doctors companies nonstandard health • Clinics • HMOs information they • Psychologists • Company health plans receive from another • Dentists • Government entity into a standard • Chiropractors programs that pay for (i.e., standard • Nursing Homes health care, such as electronic format or • Pharmacies Medicare, Medicaid, data content), or ...but only if they and the military and transmit any veterans health care information in an programs electronic form in connection with a transaction for which HHS has adopted a standard.
Preempti tion • HIPAA sets a floor • A state law more protective of privacy prevails • With mental health, state law is generally more protective • With substance abuse federal law is generally more restrictive (42 CFR Part 2) • With HIV, state law generally will prevail http://www.hhs.gov/hipaafaq/state/399.html
HIPAA: C : Consen ent i is not requir ired f for dis isclo losures o or uses Necessary to carry out treatment Payment, or Health care operations (administrative, financial, legal, and quality improvement activities of a covered entity necessary to run its business and support the core functions of treatment and payment) http://www.hhs.gov/ocr/privacy/hipaa/understanding/ coveredentities/usesanddisclosuresfortpo.html
Unde der Fl Florida La Law Consent is not required when a facility administrator “deems release to…an aftercare treatment provider…is necessary for treatment of the patient…(or) aftercare planning (394.4615) Disclosure may be made without consent to “…attending physicians, or other health care practitioners and providers currently involved in the care or treatment of the patient...” (395.3025(4) Confidentiality may be waived “when there is a clear and immediate probability of physical harm to the 21 patient or client, to other individuals, or to society”
Som ome Rece cent nt 4 42 CFR FR Devel elopm pmen ents • Disclosure for research expanded • Patient can now consent to disclosure to providers in general • Patient may request list of entities to whom disclosure made • Attempting to clarify access for program audit purposes etc. • https://www.samhsa.gov/newsroom/press- announcements/201701131200 22
Fl Flor orida La Law C Conf onfide dentiality ty S SA Records Appropriate disclosure may be made without consent 1. To medical personnel in a medical emergency. 2. To service provider personnel if such personnel need to know the information in order to carry out duties relating to the provision of services to an individual. (397.501 (7)(a)(1)(2) 23
Qu Quest stion 1: 1: Two officers responding to a call find a person threatening to commit suicide or harm his mother. One officer calls the local mental health center and asks if the person is currently a patient at the Center. Can the Center can give the officer this information Under federal law? T or F Under state law? T or F 24
Intercept t 1: : At P t Point nt o of I f Interventi tion - Officer without MHP present HIPA PAA: Yes, “to prevent or lessen a serious and imminent threat to health or safety” or under “care and control” of the officer - Officer with MHP present Yes, the MHP is a covered entity FL FL La Law: Yes, to prevent harm (officer only)/continuity of care (if MHP present) 25
Qu Quest stion 2 2 Treatment staff from the jail call the local hospital to ask for the name of the medication a recently booked person is taking. Can the hospital can provide this information Under federal law? T or F Under state law? T or F 26
Intercept t 2: : In th n the Jai ail: M May y Treat atmen ent P t Provide der S Shar hare PHI HI? HIPA PAA, yes if for 1 of 4 purposes: Provide healthcare • Ensure health and safety of • inmates and others Protect transporting officer • Promote law enforcement on • premises For safety and security of • correctional facility Florid ida a Law: Yes, continuity of • care 27
Sharing ng I Inf nformati tion w with th Fam amilies es: Quest Qu stion 3 3 Your client appears to lack the capacity to make a decision about treatment and a family member is asking you to provide her with detail about the client’s current medication. Can you provide this information? Under federal law? T or F Under state law? T or F 28
Fl Flor orida La Law ( (394.4 .4615( 5(9) Nothing in this section is intended to prohibit the parent or next of kin…from requesting and receiving information limited to a summary of that person’s treatment plan and current physical and mental condition. Release…shall be in accordance with the code of ethics of the profession involved. 29
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