Changes in Washington State Confidentiality Laws in 2009. Gregory Robinson Washington Community Mental Health Council. Two significant bills passed in 2009. Substitute House Bill 1300, described as “Mental Health Services Information—Access”
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Washington Community Mental Health Council
Substitute House Bill 1300, described as “Mental Health Services Information—Access”
House Bill 2025, described as Treatment Records – Sharing—Coordinated Care”
Both bills modified 71.05 RCW
These are unchanged:
HIPAA – Health Insurance Portability and Accountability Act – Privacy Rule
42 CFR Part 2 – prohibits disclosure, unless the patient has consented in writing or the disclosure falls within limited exceptions (e.g., child abuse reporting, medical emergencies).
There are requirements for business associate contracts, and privacy practices notices to patients, and disclosure accounting, but
State law RCW 71.05 has generally been more restrictive about access to information about mental health services
Shannon Harps was stabbed to death on New Years Eve in 2007.
King County Prosecuting Attorney Dan Satterberg headed a task force that looked into the community supervision of her killer, James Williams
During its deliberations Isaac Zamora went on a shooting rampage in Skagit County, killing 6
Task force reported that communication between law enforcement, corrections officers, and mental health providers was a problem
Many professionals were prohibited from communicating with others because of confidentiality laws.
In some cases, even where no legal prohibitions existed, there was a perception of a prohibition of sharing information, and the information was not shared.
Statutes regarding confidentiality were not all located in one place, and a determination of the kinds of data and communications allowed to be shared was sometimes laborious and complicated.
Rep. Mary Lou Dickerson participated in the task force, and introduced four bills in the 2009 legislative session, including SHB 1300
After normal legislative processes, the bill passed both the House and the Senate, with only one dissenting vote
Amended RCW 71.05.020, 71.05.390, 71.05.445, and 71.05.630
Definitions that were in 71.05.445 were moved to the main definitions area, 71.05.020, with no real changes
Old language that was in 71.05.630 disappeared, but see 71.05.385
Language was added in several places in 71.05.390 to specify that “disclosure under this subsection is mandatory” under HIPAA
Only required disclosures are to individual, of who has received information, and to the Feds for enforcing HIPAA
All other disclosures are “permitted” if certain conditions are met
Disclosures to law enforcement must be required by law in order to be permitted
New classes of public workers are authorized to receive certain information, about certain individuals, for certain purposes:
Law enforcement officers
Public health officers
Therapeutic court personnel
Indeterminate Sentence Review Board personnel
Department of Corrections personnel
Is currently committed to the custody or supervision of the department of corrections or the indeterminate sentence review board under chapter 9.94A or 9.95 RCW; or
Has been convicted or found not guilty by reason of insanity of a serious violent offense; or
Was charged with a serious violent offense and such charges were dismissed under RCW 10.77.086.
Has engaged in activity indicating that a crime or a violation of community custody or parole has been committed; or
Based upon his or her current or recent past behavior, a crime or a violation of community custody or parole is likely to be committed in the near future; or
Is exhibiting deterioration in mental functioning which may make the individual appropriate for civil commitment under 71.05 RCW.
They tell you it is – you can rely on their assertion
Information request must be on a form that has been vetted by a large group of stakeholders, as required in 71.05.385
Current version of the form will be used for six months as a trial run
If improvements are needed that is when the form will be reviewed
Allows release of information without authorization to licensed mental health professionals, and certain licensed health professionals
Recipient of information must be providing care, or the person has been referred to them for evaluation or treatment
The purpose is to assure coordinated care & treatment
Administrative and office support staff for the above professionals are also permitted recipients
Obtaining authorizations can be time-consuming, particularly if next visit is not scheduled for near future
Coordination with primary care can help to address health disparities
Feedback from pediatricians, parents, is that mental health system does not work well with others
Community mental health needs to have strong relationships with primary care
Those relationships can help inform community mental health providers about serious issues of concern for the consumer
Those relationships need to identify what information the primary care provider needs
Without that understanding, problems can arise that seriously impair the relationship
Psychotherapy notes means notes recorded (in any medium) by a health care provider who is a mental health professional documenting or analyzing the contents of conversation during a private counseling session or a group, joint, or family counseling session and that are separated from the rest of the individual’s medical record.
Psychotherapy notes excludes medication prescription and monitoring, counseling session start and stop times, the modalities and frequencies of treatment furnished, results of clinical tests, and any summary of the following items: Diagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date.
For treatment provided by the covered entity.
For a covered entity’s own training, and to defend itself in legal proceedings brought by the individual
For HHS to investigate or determine the covered entity’s compliance with the Privacy Rules
To avert a serious and imminent threat to public health or safety
To a health oversight agency for lawful oversight of the originator of the psychotherapy notes
For the lawful activities of a coroner or medical examiner
Or as required by law, subject to strict limitations.