Legal and ethical foundations in integrated bh setting foundations for best practices
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Session # A5A October 6 , 2012. Legal and Ethical Foundations in Integrated BH Setting: Foundations for Best Practices. Cathy Hudgins , PhD, LPC, LMFT, Asst Prof. , Counselor Education, Radford U. VA Sandra Rose, PhD, Director of BH: Goodwin Community Health Center, NH

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Legal and Ethical Foundations in Integrated BH Setting: Foundations for Best Practices

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Legal and ethical foundations in integrated bh setting foundations for best practices

Session # A5A

October 6, 2012

Legal and Ethical Foundations in Integrated BH Setting: Foundations for Best Practices

Cathy Hudgins, PhD, LPC, LMFT, Asst Prof. , Counselor Education, Radford U. VA

Sandra Rose, PhD, Director of BH: Goodwin Community Health Center, NH

Peter Fifield, MS, BH Consultant, Families First Health and Support Center, NH

Steve Arnault, MA, VP of Quality, Compliance and Integrated Care, CLM, NH

Collaborative Family Healthcare Association 14th Annual Conference

October 4-6, 2012 Austin, Texas U.S.A.


Faculty disclosure

Faculty Disclosure

Please include ONE of the following statements:

I/We have not had any relevant financial relationships during the past 12 months.


Objectives

Objectives

  • Identify federal and state laws relating to consent and confidentiality in integrated settings.

  • Relay key interpretations of federal and state laws governing confidentiality and consent as they apply to integrated settings.

  • Identify sample practices and trend in the field with respect to informed consent and confidentiality integrated settings.


Learning assessment

Learning Assessment

A learning assessment is required for CE credit.

Attention Presenters:

Please incorporate audience interaction through a brief Question & Answer period during or at the conclusion of your presentation.

This component MUST be done in lieu of a written pre- or post-test based on your learning objectives to satisfy accreditation requirements.


Are we the same or different ic and confidentiality

Are we the Same or Different? IC and Confidentiality


Legal and ethical foundations in integrated bh setting foundations for best practices

Regulatory Influences:

IC and Confidentiality


Hipaa informed consent

HIPAA: Informed Consent


Hipaa confidentiality and ic pcps bhp comparison

HIPAA –Confidentiality and IC: PCPs/BHP Comparison

  • No distinction: No authorization required if health purpose. IC required by all providers.

  • Psychotherapy Notes: “Mental health professional” recording/analyzing contents of a conversation in a session and “separated” from the rest of the record.”

  • Excludes Rx, summary of dx, status, tx plan, sxs, px and progress.

    45CFR 164.501


Psychotherapy notes

Psychotherapy Notes

  • “Mental health professional” recording/analyzing contents of a conversation in a session and “separated” from the rest of the record.”

  • Excludes prescriptions, summary of diagnosis, status, treatment plan, symptoms, prognosis and progress.

    45CFR 164.501


Hipaa confidentiality

HIPAA: Confidentiality


42cfr part 2 the alcohol and drug confidentiality law

42CFR Part 2: The Alcohol and Drug Confidentiality Law

  • Purpose: To “ensure that an alcohol or drug abuse patient in a federally assisted alcohol or drug abuse program is not made more vulnerable by reason of the availability of his or her patient record than an individual who has an alcohol or drug problem and who does not seek treatment.”


42cfr part 2

42CFR Part 2:


Are you covered yes if

Are you covered? Yes, if


Are you a program

Are you a “Program”?

yes

Or

AND

yes

yes

SAMSHA 2011 FAQs: Applying the Substance Abuse Confidentiality Regulations 42CFR Part 2


If covered need

If Covered, Need


Exceptions

Exceptions

  • Written authorization

  • Internal Communication within a “program” or “an entity having direct administrative control”

  • Medical emergencies (only to medical personnel)

  • Court orders (not all of these)

  • Crimes at program or against program staff

  • Research

  • Audits and evaluation

  • Child Abuse (but only the specific action of neglect/abuse)

  • Qualified Service Organization/Business Associate Agreement.

Adapted from Legal Action Center: Confidentiality and Communication:

A guide to the Federal Drug and Alcohol Confidentiality Law and HIPAA (2012)


Part 2 informed consent and confidentiality

Part 2: Informed Consent and Confidentiality


State laws confidentiality

State Laws: Confidentiality

  • Licensing Laws: Vary by discipline and state.

  • Often same for PCP and BHPs—In 13 states, the privilege for BHPs is compared to that between lawyer and their client.

  • No law specifying how the privilege is to be protected.

  • Sensitivity test: the greater the sensitivity of information, the more protections (e.g., Berg v Berg, 2005).


Case law confidentiality

Case Law: Confidentiality

  • Berg vs. Berg (2005)-Father denied access to child’s record.

  • NH Supreme court asserted that the therapist-client privilege may be even more compelling than that behind the usual physician-patient privilege because of the greater demand for confidence and trust that the patient needs to enter treatment, and the need to make disclosures important for psychotherapy vs. that which may be required in the treatment of physical ailments.


State law confidentiality

State Law: Confidentiality

Consider sensitivity of information, patient expectations and ethical guidelines for practice.


State statutes informed consent

State Statutes: Informed Consent

  • Varies by state and discipline.


Nh statute mental health practice chapter 330 a 15

NH Statute: Mental Health Practice: Chapter 330-A:15

  • “A copy of the patient's mental health rights shall be posted in a prominent location in the office of the mental health practitioner.”

  • “Mental Health Bill of Rights,” directs each licensee to provide patients information regarding office hours, fees, missed appointments, billing policies, and even to be informed that they are entitled “[to] a safe setting and to know that the services provided are effective and of a quality consistent with the standard of care within each profession and to know that sexual relations between a mental health provider and a client or former client are a violation of the law.” (MHP 502.02)


State law informed consent

State Law: Informed Consent


Bhps vs mhps

BHPs vs. MHPs


Analogy coaching

Analogy: Coaching

  • Coaching-- “helping clients discover their goals for improvement, define specific goals and strategies for reaching these goals and then enabling the client, through regular counseling, to achieve these goals” (from the Ethics Code of the International Coach Federation, cited by Dr. Harris, APAIT).

Coaching: A New Frontier Some Questions and Answers by Eric A. Harris, J.D., Ed.D. Risk Management Consultant The Trust

http://www.apait.org/apait/resources/articles/coaching.pdf (downloaded 9.29.12)


Regulation of coaching

Regulation of Coaching

  • Coaching is considered within the scope of practice by psychologists.

  • “It is unlikely that psychologists would be able to escape licensing board regulation by opening separate “coaching only” businesses even if they do not represent themselves as psychologists in providing these services.” (Harris, APAIT)

  • When licensing boards receive complaints by psychologists providing coaching services, they will use the duck test--“If it waddles, quacks, and swims like a duck, it will be treated like a duck, even if you are calling it an elephant”. (Harris, APAIT)

  • “The closer to psychotherapy, the higher the power differential, the more psychologically robust the techniques, the greater the level of regulatory oversight and the greater similarity of oversight to that provided to psychotherapy”. (Harris, APAIT)

    Coaching: A New Frontier Some Questions and Answers by Eric A. Harris, J.D., Ed.D. Risk Management Consultant The Trust


By analogy

By Analogy:


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