Health Information Management

Mental health bill clarifies privacy standards for caregivers and extends EHR incentives to psychiatrists

HIM-HIPAA Insider, June 22, 2015

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by John Castelluccio, Editor

A bill just reintroduced in Congress by Rep. Tim Murphy of Pennsylvania seeks to fix “the nation’s broken mental health system” in part by empowering parents and caregivers to play a larger role in patients’ care as they are often faced instead with privacy barriers thrown up by psychiatrists citing HIPAA regulations. The bill would also extend government incentives for health IT programs to mental health professionals.

The new legislation seeks to clarify under both the HIPAA Privacy Rule and Family Educational Rights and Privacy Act when physicians and mental health professionals can appropriately disclose PHI to parents and caregivers, especially in situations when the patient is experiencing an acute mental health crisis.
There is also a provision stating physicians can consider information provided by concerned family members and caregivers so that information can be factored into the patient’s care.
“Physicians are often unwilling to share or receive information with loved ones about an individual who has a serious mental illness and is experiencing a psychotic break because of complicated federal rules on communicating with immediate family members and caregivers,” said Murphy in a summary of The Helping Families in Mental Health Crisis Act, noting further that scenario becomes especially problematic for parents of young adults.
Murphy, a psychologist, says those conclusions were reached after an exhaustive Congressional review of the nation’s mental health system by members of the Energy and Commerce Subcommittee on Oversight and Investigations.
H.R. 2646 attempts to break down federal barriers to care, clarify privacy standards for families and caregivers, reform outdated programs, expand parity accountability, and invest in services for the most difficult to treat cases while driving evidence-based care, according to Murphy and co-sponsor Rep. Eddie Bernice Johnson of Texas.
In regard to privacy, the bill would establish criteria whereby caregivers would be recognized as personal representatives of patients and it lays out six instances where disclosure of PHI to caregivers would be appropriate under HIPAA. The criteria are as follows:
  1. Such disclosure is for information limited to the diagnoses, treatment plans, appointment scheduling, medications, and medication-related instructions, but not including any personal psychotherapy notes.”
  2. “Such disclosure is necessary to protect the health, safety, or welfare of the individual or general public.”
  3. “The information to be disclosed will be beneficial to the treatment of the individual if that individual has a co-occurring acute or chronic medical illness.”
  4. “The information to be disclosed is necessary for the continuity of treatment of the medical condition or mental illness of the individual.”
  5. “The absence of such information or treatment will contribute to a worsening prognosis or an acute medical condition.”
  6. “The individual by nature of the severe mental illness has or has had a diminished capacity to fully understand or follow a treatment plan for their medical condition or may become gravely disabled in absence of treatment.”
The Congressional investigation also highlighted the fact that existing Medicare and Medicaid EHR Incentive Programs do not include mental or behavioral health physicians as eligible professionals, creating a significant financial hurdle for physicians who want to convert patients’ medical records over to electronic systems.
The proposed bill simply seeks to extend those health IT incentives to mental health providers as well, along with psychiatric hospitals, outpatient mental health facilities, and substance abuse treatment centers. Murphy says it will result in better coordinated medical and behavioral care for patients as well as cost savings.
The American Psychological Association and other physician groups support this effort, but some mental health clinicians cite concerns for potential privacy violations if they switch their patient records over to EHR systems.
Personal details of former spouses and other family members are often included in psychotherapy notes, and that private information could be much more vulnerable to inappropriate access in a shared system of electronic records, Burt Bertram, a mental health counselor in Orlando, Florida, told the Washington Post.
Language in the bill, however, appears to address that concern.
Other objectives contained in H.R. 2646 include:
  • Ensuring patients are treated in healthcare systems and not just warehoused in jails
  • Providing alternatives to institutionalization
  • Advancing telemedicine initiatives to help reach underserved or rural populations
  • Expanding the mental health workforce
  • Driving evidence-based care
  • Advancing medical research
  • Increasing access to inpatient psychiatric care for critically-ill patients
Murphy said the investigation revealed the federal government’s current approach to mental health is a “chaotic patchwork of antiquated programs and ineffective policies across numerous agencies.” He added that severely ill patients who don’t receive proper treatment as a result, often end up in the criminal justice system or homeless instead.
“It is not just a new bill, but marks a new dawn for mental health care in America. We are moving mental health care from crisis response to recovery, and from tragedy to triumph,” said Murphy in a statement. “I am tremendously proud of the work we’ve accomplished and so encouraged about our nationwide grassroots support involved in advancing our legislative vision to help families in mental health crisis.”
A similar version of the bill was first introduced in Congress in December 2013, but no action was taken on it and a new version of the bill was filed June 4, 2015.


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