Consent and Release in PCBH Settings

1. Consent and Release in PCBH Settings Cathy M. Hudgins, PhD, LPC, LMFT, Director of the NC Center of Excellence for Integrated Care Steve Arnault, MA, Vice President of Quality and Compliance Center for Life Management Peter Fifield, M.S., LCMHC, MLADC, Manager of Integrated Behavioral Health ServicesFamilies First Health and Support Center Sandy Rose, PhD, Director of Behavioral Health Goodwin Community Health Primary Care Behavioral Health Special Interest Group

2. Faculty Disclosure We have not had any relevant financial relationships during the past 12 months.

3. Learning ObjectivesAt the conclusion of this session, the participant will be able to: • Identify common ethical and legal issues related to consent and release in PCBH settings. • Provide current interpretations of laws and ethical guidelines governing providers in PCBH settings. • Discuss consent and release challenges and possible solutions.

4. Learning Assessment • A learning assessment is required for CE credit. • A question and answer period will be conducted at the end of this presentation.

5. Commonalities in Behavioral Health Ethical Codes • Place priority on welfare and rights of clients & society/do no harm • Practice only within one’s competency • Prohibit exploitative and/or intimate dual relationships • Attain informed consent for treatment

6. Commonalities Cont. • Protect client confidentiality • Help clients reach self-determined goals/autonomy • Maintain awareness of own values, biases • Pursue ongoing professional development • Confront colleagues demonstrating unethical, illegal, incompetent practice

7. If the Law says “X” and we are doing “Y”, there is bound to be a problem at some point.

8. Informed Consent • Recommendation #1: Put Informed Consent in Your Handbook/Initial Patient Paperwork • Patient Handbook or initial patient paperwork should include the following: • Exceptions to confidentiality • Integrated EMR notes • HIPAA and Part 2 notice • BHCs role on the treatment team • Patient Bill of Rights [if state-mandated]

9. Informed Consent Cont. • Informed consent varies by state and discipline. • Patients should be provided with all of the information regarding the provision of behavioral health treatment in language that is understandable and offers all of the risks as well as their rights prior to being treated. • Providers should be introduced in a way that reflects their role as a behavioral health provider and clarifies patient expectation (professional Identity). • The patient may be given the consent with the initial intake paperwork, but even during the “warm handoff,” the consent should be revisited.

10. Q#1 • The role of the BHC is explained in my settings initial patient information paperwork that is handed out when they establish services? • Yes • No

11. Determining Patient Care Policies in PCBH Settings • Federal Law (e.g. HIPAA, 42CFR Part 2) • State Law (Statues, Laws, Licensing Laws) • Ethical Guidelines (APA, ACA, AAMFT, AMA, NASW) • Agency/Organization Policies

12. The “Warm Hand-off” • Recommendation #2: Assure informed consent before intervening. • If you chose to do “psychotherapy” reintroduce the Informed Consent and review patient Bill of Rights (if required by your state). • The closer to traditional psychotherapy and the more sensitive the information exchanged, the more informed consent and the greater the protection needed for the information exchanged.

13. Challenges When Putting Behavioral Health and Medical Providers Together Shift in the way in which each provider conceptualizes the flow of information • Consent to treat as an on-going process for behavioral health providers • Restrictions on the exchange of information to family and others with the patient during and outside of visits • Behavioral health providers must identify their professional role when gaining consent

14. Introducing the Behavioral Health Provider • Recommendation #3: PCP--pay attention to how you introduce the MH/SUD/BH provider to the patient because it will set the stage. • BHP ask yourself: “what does the patient think I do?” • Am I a clinician specializing in psychotherapy? • Or a BHP aiding with sleep issues?

15. Introductions Cont. • If you want your notes to be integrated into the EHR/chart per HIPAA: • Document Dx, status, treatment plan, and progress [progress note] • Do not document or analyze the content of conversation [process note]

16. Q#2 • The role of the BHC is explained to the patient at the warm hand off? • Yes • No

17. HIPAA • HIPAA is the baseline for determining consumer privacy/rights and security policies and procedures. • HIPAA standards dictate the use, disclosure, and exchange of information policies in all forms of communication, including electronic, written, or oral. • Many agencies and organizations increase the levels of privacy and security to protect consumers’ rights and public health and safety.

18. Q#3 • Behavioral Health Consultants at my setting: • Provide consultation on health and wellness and do not provide/bill for psychotherapy. • Provide and bill for psychotherapy. • Provide& bill for psychotherapy and provide consultation on health and wellness.

19. Communications • Do We need consent to release? • Internal Communications • If you are not a SUD specialist, document internally as needed. • Internal communication is ok(if allowed by your state). • If you are a clinician in a "program", get a release [QSOA] to discuss patient information with the rest of the team.

20. Communications • Recommendation # 6: For internal communications, always document the minimal necessary information as a "progress note."

21. What can a progress note include? • Medication management notes and start stop times • Summary of the following: • A description of the major events and topics discussed, interventions used, observations and assessment of status and plans for future • Diagnosis, • Functional Status • Treatment plan • Symptoms • Prognosis • Progress to date

22. External Communication • Recommendation #7 Get a HIPAA compliant release to share psychotherapy notes or any note that contains "sensitive" information or any Part 2 covered material. • Remember the higher the sensitivity, the higher the need for release to share.

23. Substance Use Disorders (SUD) • Recommendation# 4: If you are a SUD "program," lock your notes under special security status [i.e. SUD or SUBAB]. • SBIRT protocols and restrictions vary per state interpretation. Be informed!

24. Are you a “Program?” • Program means: • (a) An individual or entity (other than a general medical care facility) who holds itself out as providing, and provides, alcohol or drug abuse diagnosis, treatment or referral for treatment; or • (b) An identified unit within a general medical facility which holds itself out as providing, and provides, alcohol or drug abuse diagnosis, treatment or referral for treatment; or • (c) Medical personnel or other staff in a general medical care facility whose primary function is the provision of alcohol or drug abuse diagnosis, treatment or referral for treatment and who are identified as such providers. (See §2.12(e)(1) for examples.)

25. 42CFR Part 2 • Federal Law that dictates the use, exchange, or release of information by any provider or entity identified as a “Program” • Guarantees strict confidentiality of information about persons receiving alcohol and drug prevention and treatment services • Insures that an alcohol or drug abuse consumer is not made more vulnerable by reason of the availability of his or her consumer record than an individual who has an alcohol or drug problem and who does not seek treatment

26. QSOA • Recommendation #5: Develop a QUALIFIED SERVICE ORGANIZATION/BUSINESS ASSOCIATE AGREEMENTS (QSOA/BAA) with other elements you collaborate with frequently(if allowed by your state). • legalactioncenter.com

27. Q#4 • I am a SUD Program.           • I(myself and/or others of my profession) am/are considered a Substance Use Disorder (SUD) Program? • Yes • No • I am unsure.

28. Electronic Medical/Health Record • Recommendation #8: In the EHR, lock sensitive MH/SUD documents and set standards regarding who can access. • Designate levels for "BH," "MH," and "SUD" and set privileges on a need to know basis. • Create specific office policy for releasing sensitive information and consider chart audits.

29. Health Information Exchanges (HIE) • QSOA can be used to facilitate communications between a Part 2 “program” and a HIE • Before any exchange can happen a “two way” QSOA agreement must be in place • “Patient consent is not needed to authorize such communications between the [HIE] and a Part 2 program when a ASOA is in place between the two”

30. Confidentiality • Licensing laws dictating confidentiality vary by discipline and state. • In 13 states confidentiality is compared to that between lawyer and their client. • Sensitivity test: the greater the sensitivity of information, the more protections. • Communication between providers in a PCBH setting is allowed by HIPAA and 42CFR Part 2, but there are restrictions and exceptions. Be aware of these laws prior to establishing policies. • In most cases, communication about a patient between providers can be established without a fresh consent through the use of a QSO (Quality Service Organization Agreement)or a BAA (Business Associates Agreement).

31. ProtectingPatient Privacy • The most restrictive law/policy trumps all others in most cases. • With the addition of the Behavioral Health Professional, policies related to the services he or she provides may increase the level of privacy and security. • Cross-training is recommended prior to policy shifts.

32. Q#5 • Does your state require specific conversation around informed consent during the initial visit with a patient • Yes • No • I don’t Know

33. Ongoing Recommendations • Access legal counsel or at least familiarize yourself with federal and state laws when developing consent and release policies, protocols, and forms. • States are beginning to change laws to meet the challenges to confidentiality being presented in integrated settings. Stay abreast of these new developments! • Defer to the most stringent patient protection standards for treatment team professionals and services rendered.

34. Recommendations Cont. • Cross train all providers and offer continuing education opportunities. • Communicate the roles of all staff in these policies and procedures to balance flow and ethics • Revise policies and procedures according to the issues that arise in the setting.

35. Post-Assessment Questions • How does your PCBH setting handle consent and release? • What state, federal, and/or professional ethics guide the consent and release policies in your practice setting? • What related challenges have you and your team faced in your setting? • How did you and your team solve these issues?

36. References Health Insurance Portability and Accountability Act of 1996. Pub. L. No. 104-191, 110 Stat. 1936 (1996). Hudgins, C., Fifield, P. Y., Rose, S., & Arnault, S. (2013). Navigating the legal and ethical foundations of informed consent and confidentiality in integrated primary care. Family Systems, & Health, 31(1), 9-19. Substance Abuse and Mental Health Services Administration U.S. Department of Health and Human Services (2011). Applying the substance abuse confidentiality regulations 42 CFR Part 2 (Revised). Retrieved from http:// www.samhsa.gov/about/laws/SAMHSA_42CFRPART2FAQII_Revised.pdf Reitz, R., Common, K., Fifield, P., & Stiasny, E. (2012).Collaboration in the presence of an electronic health record. Family, Systems, and Health, 30(1), 72-80. Runyan, C., Robinson, P., & Gould D. (2013). Ethical issues facing providers in collaborative primary care settings: Do current guidelines suffice to guide the future of team based primary care? Families, Systems, & Health, 31(1),1-8.

37. Session Evaluation Please complete and return theevaluation form to the classroom monitor before leaving this session. Thank you!