Stacey Mondschein Katz, Esq. September 19, 2014

1. Maine Health Information Management Association Mental Health, Substance Abuse, HIV, Minors - Confidentiality Update Stacey Mondschein Katz, Esq. September 19, 2014

2. Maine: Mental Health Protections – Specific Permission • Something you already know: • Disclosure of Mental Health Information requires specific, written permission on an authorization form. • But what is “Mental Health” Information? • Telling a provider about feeling depressed or grieving a loss in the course of a general examination does not put that information under the “mental health” protections requiring specific authorization/consent before disclosure is permitted outside the office/entity. This information is part of the patient’s general record, covered by 22 MRSA 1711-C and HIPAA.

3. Mental Health Information • Maine law (22 MRSA 1711-C) and HIPAA generally govern health care information • Mental health information is generally governed by 34-B MRSA 1207 • Whose information is protected under this law?

4. Mental Health Law 34-B MRSA 1001, 1207 • Client.  "Client" means a person receiving services from the Department [of Health and Human Services], from any state institution or from any agency licensed or funded to provide services falling under the jurisdiction of the Department. • “All orders of commitment, medical and administrative records, applications and reports, and facts contained in them, pertaining to any client shall be kept confidential and may not be disclosed by any person,” • Exceptions include: statutory function of the Department, with consent of patient or personal representative, court order, next of kin or spouse, education and training (where does not identify patient/client), to avert a serious threat of harm, danger, access to firearms by person committed to an institution.

5. Rights Rules - Application • Definitions under the Maine Rights of Recipients of Mental Health Services • Applies to Recipients, meaning any person over age 18 receiving mental health treatment from any mental health facility, agency or program. • “Mental Health Facility, Agency, or Program means any facility that provides in-patient psychiatric services and any agency or facility providing in-patient, residential or outpatient mental health services that is licensed by, funded by or has a contract with the Department of Health and Human Services.” • Treatment means any activity meant to prevent, ameliorate, prevent deterioration of, or cure a recipient's mental health problem or mental illness and includes behavioral, psychological, medical, social, psychosocial and rehabilitative methods that meet usual and customary standards in the field of mental health treatment.

6. Specific Permission Under 1711-C • Specific written permission is required before disclosure outside the practice/organization where: • The PHI is provided to a psychiatrist, psychologist, counselor, social worker or clinical nurse specialist and there is no emergency, or • the information was provided in the context of a licensed mental health program or facility.

7. NEW! Mental Health-Related Amendment to State Law • Amendment to both 22 MRSA 1711-C and 34-B MRSA 1207 (Mental Health Confidentiality Law) • Permits disclosure of mental health information for care coordination and/or care management of the client.

8. 22 MRSA 1711-C • Disclosure without authorization to disclose • A health care practitioner or facility may disclose, or when required by law must disclose, health care information without authorization to disclose under the circumstances stated in this subsection or as provided in subsection 11. Disclosure may be made without authorization as follows: • A. To another health care practitioner or facility for diagnosis, treatment or care of individuals or to complete the responsibilities of a health care practitioner or facility that provided diagnosis, treatment or care of individuals, as provided in this paragraph. • 1. For a disclosure within the office, practice or organizational affiliate of the health care practitioner or facility, no authorization is required. • 2. For a disclosure outside of the office, practice or organizational affiliate of the health care practitioner or facility, authorization is not required, except that in nonemergency circumstances authorization is required for health care information derived from mental health services provided by: • a. A clinical nurse specialist licensed under the provisions of Title 32, chapter 31; • b. A psychologist licensed under the provisions of Title 32, chapter 56; • c. A social worker licensed under the provisions of Title 32, chapter 83; • d. A counseling professional licensed under the provisions of Title 32, chapter 119; or • e. A physician specializing in psychiatry licensed under the provisions of Title 32, chapter 36 or 48.

9. New language 22 MRSA 1711-C • 5. This subparagraph does not prohibit the disclosure without authorization of health care information covered under this paragraph to a health care practitioner or health care facility, or to a payor or person engaged in payment for health care, for purposes of care management or coordination of care. • Disclosure of psychotherapy notes is governed by 45 Code of Federal Regulations, Section 164.508(a)(2). • A person who has made a disclosure under this subparagraph shall make a reasonable effort to notify the individual or the authorized representative of the individual of the disclosure.

10. LD 534, Public Law 326, Mental Health Law Amendment – Disclosure without Authorization for Care Coordination • Allows PHI to be disclosed to PCP • Allows PHI to disclosed for payment for healthcare • Person/entity disclosing needs to make a “reasonable effort to notify the individual or personal representative of the disclosure.”

11. Questions posed previously • Still need an authorization? • Only for inpatient? • Need az if seen in outpatient setting? • Authorization/Release of information changes?

12. Mental Health Advance Directive • Declaration Directing Medical Treatment • Any person 18 years of age or older who suffers from a psychotic condition but is competent and in a state of remission at the time of execution may execute a declaration directing that medical treatment, including the administration of psychotropic drugs, be provided at a time when the person has lapsed and is not able to make decisions regarding medical treatment. The provisions detailing the requrements of the declaration are found in 23-B MRSA, Chapter 8

13. General PHI Protections: Access/ Right to Review the Record • HIPAA provides patients with access to their record (Right to Inspect and Copy.) Under HITECH, that right will be expanded to broad electronic access. • Maine Law gives patients the general right to review their record where no risk of harm. Currently, “reasonable time” to provide access. • Currently, HIPAA allows 30 days to provide access, Maine says “reasonable time.” • But what about patients with Mental Health treatment records?

14. Rights Rules • The recipient or the recipient's guardian has the right to review the recipient's record at any reasonable time upon request, including prior to its authorized release. Such records shall be made available within three working days of such request. • Review of the care record shall occur under the supervision of a designee of the Chief Administrative Officer of the facility or program. • In cases where there exists a reasonable concern of possible harmful effect to the recipient if the review of the record occurs, the Clinical Director or designee shall supervise the review.

15. Denial of Access – Rights Rules • In cases where access of the guardian to the recipient's record would create documented imminent danger to the physical or mental well being of the recipient, the professional may refuse to disclose a portion of or the entire record to the recipient or guardian. Written documentation shall be placed in the recipient's record in the event that access to the record or any portion of it is denied based an the above and the reasons for denial. • Note that HIPAA allows for a review/appeal process

16. Right to Amend, Copy • Patient/Client has the right to add a statement re: belief that information is false, inaccurate or incomplete. • Where individual wants a copy, permitted to receive one at “the actual cost of production.” HITECH says “labor cost.” • Maine: 22 MRSA 1711 (hospital record) NEW • Charge= $5 for first page, 45 cents each additional page not to exceed $250. • Electronic record: actual costs of staff time to create or copy, cost of supplies and postage. May not include retrieval fee, cost of technology, of storage, maintenance. Cost not to exceed $150.

17. Mental Health Disclosure • 34-B MRSA §1207. CONFIDENTIALITY OF INFORMATION • B. The professional may disclose the information if in the professional's judgment it is in the client's best interests to make the disclosure and the professional determines either that the client lacks the capacity to make health care decisions or an emergency precludes the client from participating in the disclosure.

18. Mental Health Disclosure • 34 MRSA 1207 • 5-A. Disclosure to family, caretakers. Under the following circumstances, a licensed mental health professional providing care to an adult client may disclose to a family member, to another relative, to a close personal friend or caretaker of the client or to anyone identified by the client, the client's health information that is directly relevant to the person's involvement with the client's care.

19. Disclosure to Friends, Family • A. If a client with capacity to make health care decisions is either present or available prior to disclosure, the professional may disclose the information: • (1) When the client gives oral or written consent; • (2) When the client does not object in circumstances in which the client has the opportunity to object; or • (3) When the professional may reasonably infer from the circumstances that the client does not object.

20. Mental Health and Health Information Exchanges HealthInfoNet: • Changes made to 22 MRSA Section 1711-C: allows Mental Health PHI to go into the Health Information Exchange with an opt-in process. • Previously, mental health info was excluded from HealthInfoNet.  • Note: As you update your NPP, you will want to include your HealthInfoNet membership, to let patients know about this material change in how their PHI is being used and disclosed. • Note: You are also mandated to provide HIN document informing about the right to opt-out of exchange. Patient may opt-out via internet, phone or through you (on paper.) Your practice has 2 business days to get that information to HIN.

21. Request for Decedent Records • HIPAA/HITECH allows family/friend involved in patient’s care to obtain clinical record upon death unless reason to believe that client would not have wanted that disclosure • 34-B MRSA 1207 Mental health law does not grant that same privilege, keeps information confidential • C. Information may be disclosed if ordered by a court of record, subject to any limitation in the Maine Rules of Evidence, Rule 503; • D. Nothing in this subsection precludes disclosure, upon proper inquiry, of information relating to the physical condition or mental status of a client to his spouse or next of kin; [SMK: pertains to living client]

22. Substance Abuse • 42 CFR Part 2 • Requires federally funded program or provider to safeguard substance abuse information • Individual provider must hold him/herself out as providing substance abuse treatment • Can’t identify patient as having drug/alcohol problem • Okay to disclose general information that does not pinpoint substance abuse treatment/service

23. Additional Requirement for Disclosure of Substance Abuse Treatment Information • Substance Abuse: Disclosures under 42 CFR 2 (“the Part 2 Rules”) require a statement that the information is protected by federal law and may not be disclosed without the specific authorization of the patient.

24. Specific Consent/Authorization • 42 CFR Part 2 generally requires specific authorization for disclosure • Requires Notice to recipient that no redisclosure is allowed without specific written permission • Limited exceptions include disclosure through a Qualified Service Organization Agreement (like a Business Associate Agreement) which requires the QSO to agree to be “bound” by the Part 2 rules and resist court intervention.

25. Maine Law • The Maine Substance Abuse Prevention and Treatment Act makes records of treatment facilities confidential and privileged. Title 5 M.R.S.A. § 20047. • State insurance law requires confidential treatment of all alcoholism and drug treatment patient records by nonprofit hospitals. Title 24 M.R.S.A. § 2329. • The state regulations for substance abuse treatment programs require that the programs comply with the federal confidentiality requirements. Me. Dept. of Health & Hum. Serv., 14-118 CMR chapter 5.

26. State HIV Confidentiality Statute • Protects HIV test results or status • 5 MRSA 19203-D Medical Records • …“The release form must clearly state whether or not the person has authorized the release of that information. ”

27. HIV • HIV confidentiality Policy is required under Maine Law • The person must be advised of the potential implications of authorizing the release of that information. ”

28. Minors • In Maine, a minor is defined as anyone less than 18 years of age. • General Rule: • Parents are authorized to consent to and refuse treatment for minor children. Therefore, the parent would also have access to and authority over the minor’s protected health information. • Legal Guardian – someone appointed by the court or by a will following parent(s)’ death. This guardian generally has the same rights the parent(s).

29. Biological Parents Share Rights • 19-A MRSA §1651. Parents joint natural guardians of children • The father and mother are the joint natural guardians of their minor children and are jointly entitled to the care, custody, control, services and earnings of their children. Neither parent has any rights paramount to the rights of the other with reference to any matter affecting their children.

30. Divorce and Minors’ Records • Divorce: Judgments generally will have a statement regarding each parent’s access to records and information relating to minor child. • “[U]nless that access is found not to be in the best interest of the child or that access is found to be sought for the purpose of causing detriment to the other parent.” 19-A MRSA§ 1653(2)(D)(4)

31. Foster Parents • DHHS is the custodian • Does foster parent have copy of the minor’s MaineCare card? • Permanency guardian – rights to guardian • You may not know if person presenting as parent is a “foster” parent

32. Minors • Where Maine law gives a minor authority to consent to health care and the minor exercises that right, the minor is entitled to control the disclosure of that information and must authorize disclosure of his/her health care information in the same manner as an adult. See, 22 MRSA § § 1505 (1) 22 MRSA § 1711-C(12)

33. Minors Special Status Certain classes of minors may access and authorize health care services, including where the minor is: • Emancipated by the court • Living separately, not financially dependent on parents for > 6 months • Married • Currently or formerly in the military • The minor mother of child. Minor may make decisions for her child, but not necessarily for herself unless within special category of services.

34. Minors May Consent To Certain Care and Treatment • A minor may consent to the following care by Maine law: • Blood donation at age 17 • Sexual assault forensic exam • Treatment for sexually transmitted diseases • Treatment for abuse of drugs or alcohol • Psychological services to treatment for emotional or psychological problems under Maine law. See, e.g., 22 MRSA § 1502 • Treatment associated with the abuse of drugs or alcohol • Family planning services

35. Minors • 22 MRSA §1908. Minors • Family planning services may be furnished to any minor who is a parent or married or has the consent of his or her legal guardian or who may suffer in the professional judgment of a physician probable health hazards if such services are not provided.

36. Exceptions to Minors’ Confidentiality • Exceptions to this general rule: • Cases of suspected abuse or neglect - your organization is a mandatory reporter • Threat by the minor to self or others – clear and substantial evidence • Where provider believes failure to contact parent/guardian would seriously jeopardize patient or patient care, [provider judgment] • Billing or health insurance claims process

37. Parental Delegation of Authority re: Minors • In Maine there is a law that provides for the delegation of powers by a parent or guardian where the parent or guardian is expected to be unavailable. Title 18-A Section 5-104 provides: • "A parent or guardian of a minor or incapacitated person, by a properly executed power of attorney, may delegate to another person, for a period not exceeding 6 months, any of that parent's or guardian's powers regarding care, custody, or property of the minor child or ward, except the power to consent to marriage or adoption of a minor ward. A delegation by court appointed guardian shall become effective only when the power of attorney is filed with the court." Maine law does not explicitly require that this document be formally witnessed or notarized.

38. Minors • Parental notification.  A health care practitioner or health care provider may notify the parent or guardian of a minor who has sought health care under this chapter if, in the judgment of the practitioner or provider, failure to inform the parent or guardian would seriously jeopardize the health of the minor or would seriously limit the practitioner's or provider's ability to provide treatment

39. Minors and Billing • When a minor who has the right to consent to his or her own treatment presents for care, a provider should assure they are asked how they wish to pay for their treatment.   • Minors should always be informed that if their chart records their parents’ insurance and the insurance is billed for the visit, their parents will receive notification from the insurer that the visit occurred.

40. Questions?