Presentation on theme: "Ethical & Confidentiality Issues in SUD Treatment"— Presentation transcript:
1 Ethical & Confidentiality Issues in SUD Treatment Sherry Larkins, Ph.D.UCLA Integrated Substance Abuse Programs
2 Training Roadmap What are the ethical issues we face as providers? What are the confidentiality issues we face as providers? How does integrated care affect client confidentiality? How do HIPAA, 42 CFR-part 2, and state confidentiality policies influence practice?
3 Changing Landscape of SUD Tx. ACA and other regulations are moving SUD Tx. toward more coordinated and integrated care.SUD tx. will be delivered in a variety of different settings, including mental health and PC facilities.One perceived barrier to care integration = the laws/policies that govern SUD, MH and PC treatment differ (42 CFR vs. HIPAA)This may affect how providers share information with others who may be involved with client care.Integrated care entities will require access to SUD info to provide best care.
5 Discussion:What are some examples of ethical issue in a substance abuse program that you have experienced? Witnessed?
6 EthicsEthics codes = laws that guide professionals in helping clients in a fair, respectable, objective, and humane wayPersonal values guide moral conduct appropriate for work settingsUnderstanding the connection between law and ethics and feeling a responsibility to integrate both appropriately
7 EthicsEthical behavior requires a familiarity with laws, and the profession’s philosophy and code of ethics.Sensitivity to the moral dimensions of counseling and your personal principlesUnderstanding your agencies policies and procedures for client services (conflict of interest, referrals, chain of command, roles, responsibilities)
8 Professional Boundaries The emotional and physical line that gives our clients space to focus on themselves - not on us.The limits that control the professional’s power so that clients are not hurt.The parameters that keep the professional as objective as possible.
9 Professional Boundaries Provider’s responsibility to maintain professional boundaries:Set proper limitsMaintain a treatment focusBe aware of thoughts/feelings generated by the client, or about the clientSeek supervision – know what to do with these feelings.
10 What if a client wants a different kind of relationship?
11 What Type of Relationship? Social/FriendshipBusiness/BarteringGift-givingRomantic/Sexual
12 Handling clients who want a different type of relationship Set firm limitsExplain why you are setting the limitsTry not to be rejecting as you set clear limits
13 Sexual Relationships: Legal and Ethical Issues Illegal in all 50 states to ever engage in any form of sexual contact with a clientSexual contact can include: intercourse, oral sex, fondling, any other kind of sexual touching, nudity, kissing, spanking, verbal suggestions, innuendoes, or advances.Considered exploitation by healthcare professionalDamage to Client’s mental healthLoss of trust in helping professionsLoss of objectivity to provide appropriate tx.Client focus is on counselor rather than his/her tx.New code allows for client-counselor relations 5 years after termination of professional relationship.
15 THINGS TO CONSIDER?What is your goal in providing the client with information?What will the information mean to the client?Are you sending confusing messages?Are you sure that it is meeting a client need and not a personal need?Is there another way to accomplish your goal without personal disclosure?Are you okay with EVERYONE in the clinic knowing the information?
16 ACTIVITY: How do you respond? Have you ever been in a gang? Are you married?/Have a boy/girlfriend?Do you have children?Have you ever used drugs?What kind of drugs did you use?Are you in recovery?What part of town do you live in?How old are you?Do you make a lot of money?How much do they pay you here?
17 Confidentiality Issues in Substance Abuse Treatment
18 Confidentiality Important legal and ethical responsibility Preserving privacy fosters trust and encourages help-seeking behavior.Balance between a patient’s legitimate desire to maintain privacy of sensitive information and permitting the sharing of information that will improve treatment or public health or safety.
19 Confidentiality in SUD Treatment Involves:HIPAA42 CFR, part 2State-based confidentiality policiesAdditional Protections for HIV infection, DV, genetics, etcNot meant to prevent info-sharing.Federal laws are a baseline; states may adopt more strict regulations.State laws vary widely, presenting challenges for developing unified policy solutions across statesAlso difficult for technology vendors to develop functionality.
20 Confidentiality in SUD Treatment Questions:How does 42 C.F.R., Part 2 relate to other laws, such as HIPAA and State-specific confidentiality laws?Who has to follow 42 C.F.R., Part 2? What information does it protects?What disclosures are allowable and prohibited by 42 C.F.R., Part 2? By HIPAAWhat precautions need to be taken when sharing information across agencies?2020
22 HIPAA Health Insurance Portability and Accountability Act of 1996 Protects health coverage for workers/families when they change/lose their job.Gives privacy and security of PHI (Protected Health information)Administrative simplification – a way to standardize information sharing within a complex healthcare system.Establishes national standards for electronic health care transactions; sets minimum privacy protectionsHIPAA, the Health Insurance Portability and Accountability Act of 1996, was designed to ensure that people could maintain their health insurance coverage when they switched jobs.It also contains provisions referred to as “Administrative Simplification”. Operating Health Care programs has become very complicated with many different insurance companies, regulatory requirements, and various data systems. Administrative Simplification calls for the standardization of information so that all parties use the same billing codes, diagnostic codes, and service codes. This would hopefully make healthcare operations much simpler.HIPAA also contains important provisions regarding protection of the confidentiality of patient information.
23 What is Protected Health Information (PHI)? 2 Components Identifies the clientHealth InformationAny information that is oral, written, electronic, created or received by health care provider, health plan, public health authority, employer, insurer, or others.Relating to past, present or future physical or mental health status, health care, and payment for such services.
25 42 U.S. Code 290dd 42 CFR Part 2Regulations governing confidentiality of alcohol and drug abuse patient recordsFirst issued 1975, revised 1987Designed to help deal with the stigma of addictionImposes restrictions upon disclosure of PHI for clients enrolled in any federally-assisted alcohol and drug abuse programRequires notification of confidentiality, consent forms, prohibition of re-disclosure42 CFR part 2 is the set of confidentiality laws that treatment providers have been operating under since 1975, with a major revision of those rules in 1987.They were designed to help patients avoid the stigma associated with addiction by keeping their treatment information confidential. It also allowed for patients to honestly talk about their drug and alcohol use, without fear that someone would obtain their information and then use it against them.This law requires the treatment providers to provide patients with a “notification of confidentiality”,…to sign consent forms to disclose information,…and requires the “prohibition of re-disclosure” form that is sent out with any patient information.The law is so strict that providers cannot even acknowledge whether someone is or isn’t in their treatment program. And the protection is so strong, that it survives death.
26 Confidentiality in Substance Abuse Treatment Settings Confidentiality is necessary because without that guarantee, many individuals with substance abuse problems would be reluctant to participate fully in treatment
27 What Programs Must Follow 42 C.F.R., Part 2? Individual/Entity which provides alcohol/drug diagnosis, treatment, or referral for treatment; ORAn identified unit within a general medical facility which provides alcohol/drug diagnosis, treatment, or referral for treatment; ORMedical personnel or other staff in a general medical care facility whose primary function is the provision of alcohol/drug diagnosis, treatment, or referral for treatment.Federal assistance: receives federal funds in any form (even if not directly paid for the drug/alc services) OR assisted by IRS through tax exempt status OR allowance of tax deductions for contributions, OR authorized to conduct business by the federal Gov't (Medicare provider, methadone or chemotherapy tx) or conducted directly by Fed Gov’t,VA and armed forces have separate rule
28 Examples of 42 C.F.R., Part 2 Programs Free-standing alcohol/drug treatment programsStudent Assistance Programs in a schoolPCP whose provision of these services is their principal practiceEmployee Assistance ProgramsMedical personnel or other staff in a general medical care facility whose primary function is the provision of alcohol/drug diagnosis, treatment, or referral for treatment; or as part of a specific unit within general medical facility identified as providing these services.Federal assistance: receives federal funds in any form (even if not directly paid for the drug/alc services) OR assisted by IRS through tax exempt status OR allowance of tax deductions for contributions, OR authorized to conduct business by the federal Gov't (Medicare provider, methadone or chemotherapy tx) or conducted directly by Fed Gov’t,VA and armed forces have separate rule
29 Examples of 42 C.F.R., Part 2 Programs ALSO, Must be federally-assisted:Gets federal assistance, even if not for alcohol/drug services;Conducted by federal government;Tax exempt by I.R.S.;Receives Medicaid or Medicare reimbursement;Authorized, licensed, certified or registered by Federal Govt.;Certified as a Medicare provider;Registered with DEA to dispense controlled substances for treatment of SUD, including clinicians with DEA registration who use controlled substances like benzos, methadone, buprenorphine for detox or maintenance.Federal assistance: receives federal funds in any form (even if not directly paid for the drug/alc services) OR assisted by IRS through tax exempt status OR allowance of tax deductions for contributions, OR authorized to conduct business by the federal Gov't (Medicare provider, methadone or chemotherapy tx) or conducted directly by Fed Gov’t,VA and armed forces have separate rule
30 Case Example Dr. Smith works in a Hospital E.R. Hospital receives federal assistancePatient receives care for a minor injury from a car-accident where s/he was driving and under the influence of alcohol/drugs.Dr. Smith calls specialized alcohol/drug unit to come to the E.R. to Screen patient for substance use issues and, if necessary, conduct a brief intervention.Patient leaves E.R. before specialized team arrives.Is Dr. Smith responsible for adhering to 42 C.F.R., Part 2?Federal assistance: receives federal funds in any form (even if not directly paid for the drug/alc services) OR assisted by IRS through tax exempt status OR allowance of tax deductions for contributions, OR authorized to conduct business by the federal Gov't (Medicare provider, methadone or chemotherapy tx) or conducted directly by Fed Gov’t,VA and armed forces have separate rule
31 Case Example Correct Answer: NO Dr. Jones works in a General Medical Facility, but not an identified Specialized Unit whose primary function is to provide alcohol/drug abuse diagnosis, treatment, or referral for treatment;42C.F.R., Part 2 would have applied IF:The Medical Facility’s Primary Function was to provide alcohol / drug services;Patient stayed and received Screening/Assessment by Specialized staff;Patient had received alcohol/drug services from E.R. employee whose Primary Function is the diagnosis or referral for alcohol/drug treatment services.Federal assistance: receives federal funds in any form (even if not directly paid for the drug/alc services) OR assisted by IRS through tax exempt status OR allowance of tax deductions for contributions, OR authorized to conduct business by the federal Gov't (Medicare provider, methadone or chemotherapy tx) or conducted directly by Fed Gov’t,VA and armed forces have separate rule
32 General Rule of “Disclosures” A Program covered by 42 CFR, part 2 may ONLY release information or records that will directly or indirectly identify a client as a substance abuser or treatment patient:With a knowing and written CONSENT from the participant, ANDOther EXCEPTIONS(explained below)
33 42 C.F.R. Part 2 - Allowable “Disclosures” Written authorization/ ConsentQualified Service OrganizationInternal communication (“need to know”)No patient-identifying informationMedical emergencyAudit/evaluation/ researchCrimes (or threats of) on program premises or against program personnelInitial reports of suspected child abuse or neglectCourt order meeting specifications of 42Consent vs Authorization (we use Authorization as Consent has several meanings)Each have its own specific and significant and sometime complicated requirements and limitations. Certain conditions must be met and certain procedures followed. Consulation with the Privacy Officer, Program director or Legal advice is recommended. HIPAA allows more, but 42 overrides (strictly prohibited). Communications with in a program or between a program and an entity having direct administrative control over that programResearch: can’t be re-disclosed, have a reviewed protocol, no identifying pt info in any report other than back to the program
34 Allowable Disclosures: Written Authorization/Consent Consent must include:Name of Program making disclosure;Name and title of individual or org. permitted to receive info.;Name of patient;Purpose of disclosure;How much & what kind of info. will be disclosed;Signature of Patient and date of Consent; wet/fax/scan/copy OKStatement of Patient’s Right to Revoke and Rules of RedisclosureDate of Expiration (Governed by State Law - No longer than 1 Yr)Source: 42 CFR § 2.1134
35 Allowable Disclosures: Written Authorization/Consent Must be in writing (not oral/verbal)Must be current / not expiredEven with consent, no info. obtained can be used to criminally investigate or prosecute a patient.Must include Redisclosure notification – notice that program may not redisclose patient info “unless further disclosure is expressly permitted by the written consent of the person.”Sample Consent Forms at:Source: 42 CFR § 2.1135
36 Allowable Disclosures: Qualified Service Organization (QSO) Definition: An Organization that provides services to a program, such as:data processing; Electronic Medical Records – info exchangeHolding/Storing patient datadosage preparation; laboratory analysesbill collectinglegal, medical, accounting, or other professional servicesSource: 42 CFR § 2.1136
37 Allowable Disclosures: Qualified Service Organization (QSO) A written agreement with a program under which that person:(1) Acknowledges that in receiving, storing, processing or otherwise dealing with any patient records from the programs, it is fully bound by these regulations; and(2) If necessary, will resist in judicial proceedings any efforts to obtain access to patient records except as permitted by these regulations.Source: 42 CFR § 2.1137
38 Allowable Disclosures: Internal Communications May disclose patient-identifying information without consent within a program IF the recipient needs the info to provide alcohol / drug services.If program is part of a larger multi-service organization, disclosure of info can only be made to personnel involved in records, billing, or direct clinical care of patient.Cannot be shared with program or agency personnel who do not need it in specific connection to their duties.Source: 42 CFR § 2.1138
39 Allowable Disclosures: No Patient-Identifying Information Ok to disclose info. that does NOT identify a patient in any way.“Identifying” info includes: name, address, SSN, DOB, D/C date, date of death, phone numbers, account numbers, unique identifying characteristics, codes or numbers.Source: 42 CFR § 2.11; HIPAA39
40 Allowable Disclosures: Medical Emergency Disclosure (and redisclosure) of patient-identifying info is permitted to medical personnel -but not family- if patient is experiencing a medical emergency.Documentation of disclosure must occur immediately afterward:Name of medical personnel and healthcare facility to who disclosure was made;Name of individual making disclosure; date & timeNature of Medical EmergencySource: 42 CFR § 2.1140
41 Allowable Disclosures: Audit/Evaluation/Research Program can disclose patient-identifying info. without consent:Researchers – But they are prohibited from using it for any other purpose or from redisclosing it except back to the program (data/report must be de-identified).Auditor/Evaluator – May only use info for program audit and eval and redisclose only back to program; govt. agency overseeing Medicare/Medicaid audit; or court during a program (not a patient) investigation.Source: 42 CFR § 2.1141
42 Allowable Disclosures: Crimes on Program Premises/Against Program Personnel If a crime is committed, or threatened, on program premises or against program personnel, staff may disclose identifying information including:suspect’s name, address, last known whereabouts, and status as a patient in the program.Duty to warn – Governed by State Laws (see below).Source: 42 CFR § 2.1142
43 Allowable Disclosures: Crimes on Program Premises – What about “Duty to Warn?” “Duty to Warn” refers to an obligation to alert others (e.g. law enforcement) when someone threatens to commit a future crime, or confesses to a past crime.Governed by State LawTarasoff v. Regents of U. of CA; other states do not require warning (e.g. HI, more permissive) .There are ways to warn without violating 42 C.F.R., Part 2Anonymous or non-patient identifying reportCourt order (“extremely” serious crime) Source: 42 CFR § 2.1143
44 Allowable Disclosures: Child/Elder Abuse Reporting of Child Abuse/Neglect and Elder Abuse are governed by State Laws.42 C.F.R., Part 2 allows for initial report and written confirmation of the report.BUT, does not permit programs to disclose records and patient-identifying information for an on-going investigation, without a Court Order.Source: 42 CFR § 2.1144
45 Allowable Disclosures: Court Order A court may issue a special court order authorizing a program disclose patient-identifying info, but must follow special procedures.Before issuing order, court must: Provide notice to patient & program, and provide opportunity for patient/program to make oral or written statement to the court.Must have “good cause” for the disclosure. “Good cause” is defined as:Public interest and need for disclosure outweigh an adverse effect disclosure will have on Patients, Doctor-Patient Relationship, Effectiveness of Program Services.No alternative way of getting the information.
46 Allowable Disclosures: Court Order Court-ordered disclosures have Limits: Only access to info essential to fulfill purpose of orderMust be restricted to persons who need the info for that purpose.Court should take any other steps necessary to protect patient’s confidentiality (e.g., sealing court records) .They may NOT authorize disclosure of “confidential communications” by patient to program, unless:Necessary to protect against threat to life or serious bodily injuryNecessary to investigate or prosecute extremely serious crimeIn connection w/proceeding in which patient has already presented evidence re: confidential communications
47 Allowable Disclosures: Court Order OH NO……What do I do? I just received a subpoenaDo not ignore! Remember: You may only disclose in response to subpoena if you receive:Patient Consent, orSpecial Court Order (NOT a subpoena signed by judge)Do NOT release without Special Court OrderRead subpoena & all accompanying documents to understand what subpoena is asking program to doSeek advice from attorneySource: 42 CFR § 2.1147
48 Allowable Disclosures: Court Order You have the right to appear and objectContact patient to see if s/he wants to consent (unless subpoena involves criminal prosecution of patient).If NO Patient consent, inform person who issued subpoena that 42 C.F.R., Part 2 prohibits program from complying, ask them to withdraw subpoena and seek Special Court Order.If unsuccessful and no attorney, appear on appropriate date (subpoena details date, time, and place of hearing), explain 42 C.F.R., Part 2, and request the judge “quash” subpoena. Bring copy of regs. Source: 42 CFR § 2.1148
49 Allowable Disclosures: Court Order OH NO……What do I do? I just received a Search or Arrest WarrantDo not forcibly resist!Neither type of warrant is sufficient under 42 C.F.R. Pt. 2 to permit or require disclosure – only Special Court Order!Explain that program cannot cooperate without Special Court Order (show officers a copy of the regs)Notify a lawyerAsk to speak to prosecuting attorney or commanding officer and repeat your explanation (stress that illegally seized records will not be admissible in courtTry prevention (form relationship w/local police) Source: 42 CFR § 2.1149
50 Bottom Line:Confidentiality laws, regulations and policies do not preclude the sharing of information for care coordination, as long as proper written consents are in place.Confidentiality concerns should not stop addiction, mental health or primary care providers from providing quality care to patients.Instead of viewing confidentiality as a barrier, focus on educating clients on info sharing to ensure better quality services and communication between providers.Confidentiality, also known as “Privacy” involves the protection of patient information and is protected by three major rules.42 CFR part 2 – the alcohol and substance abuse treatment confidentiality rule.Most states also have specific laws that cover the release of HIV information.HIPAA – are new federal rules covering all health related information.
51 TIPS on Confidentiality and Disclosure The client’s rights and the limits of confidentiality should be explained at the beginning of treatment.Educate patients about informed consent and the importance of information sharing among all of the HC providers at the time of treatment.Respect decision of patients who opt out of info. sharingInformation should only be released with the client’s or guardian’s permission; client information should not be communicated outside of the treatment team.Implement use of routine consent forms that include each necessary organization or provider, state/federal regs., signed.Encourage patients to expect communication, collaboration, shared tx. plans and joint decision-making.5151
52 PRACTICAL SAFEGUARDSWhat are some practices you do to ensure that Protected Health Information (PHI) is secured?
53 PRACTICAL SAFEGUARDSDo not leave papers containing PHI lying around where others can see themAt end of workday – clear desk or other exposed areas of PHI and place I secure location (file, cabinet, desk drawer).Do not talk about patient PHI in public areasIf you take work home don’t leave it in a place accessible to people not agency employees, keep locked in a briefcase or in car/trunk.
55 HIPAA vs. 42 C.F.R., Part 2 The laws cover a lot of the same material. Some points of difference – more specific or more recent rule usually applies.For the SUD Treatment providers, in most cases the rules of 42 CFR Part 2 are more stringentIn some cases HIPAA is more stringent.HIPAA has required your treatment provider and your drug court to make some changes in your confidentiality practices. HIPAA and 42 CFR cover a lot of the same material. When the two standards differ, the rule of law is that the more specific or more recent rule applies. With regards to chemical dependency treatment, 42 CFR is more stringent than HIPAA in many ways. A lot of what drug courts and treatment does has remained the same. In several cases, HIPAA has required some changes.
56 Disclosure for Payment HIPAA PERMITS disclosure without patient consent for the purpose of payments.42 CFR Part 2 PROHIBITS these disclosures with out patient consent.SUD/AOD providers must follow 42 CFR Part 2.
57 Re-disclosure of Information HIPAA is silent on this topic.42 C.F.R., Part 2 requires that a statement prohibiting re-disclosure accompanies the patient information that is disclosed.SUD/AOD providers must follow 42 C.F.R., Part 2.Prohibition is clear and strict.
58 Disclosures to Other Providers HIPAA allows, but does not require, programs to make disclosures to other healthcare providers without authorization.42 CFR Part 2 limits this to medical emergencies.SUD/AOD providers must follow 42 C.F.R., Part 2.
59 SUD/AOD providers must follow 42 C.F.R., Part 2. Medical EmergenciesHIPAA allows health care providers to inform family members of the individual’s location and condition without consent in emergency circumstances or if a person is incapacitated.42 CFR Part 2 limits this disclosure to medical personnel ONLY.SUD/AOD providers must follow 42 C.F.R., Part 2.CD providers need a release to contact family members in medical emergenciesDisc for med emergencies must be documented the recipient of the information, who disclosed, date/time and nature of emergency
60 Disclosure to Public Health HIPAA permits disclosure to a public health authority for disease prevention or control, or to a person who may have been exposed to or at risk of spreading a disease or condition.42 C.F.R., Part 2 prohibits these disclosures unless there is an authorization, court order, or the disclosure is done with out revealing patient information.SUD/AOD providers must follow 42 CFR Part 2; BUT California state laws compel notification.Even is state law regarding this are pre-empted by 42 CFR…
61 Right to Access Records HIPAA REQUIRES a covered program to give an individual access to his/her own health information (with few exceptions).42 CFR Part 2 gives programs DISCRETION to decide whether to permit patients to view or obtain copies of their records, unless they are governed by a state law that gives right to access.SUD/AOD providers must follow HIPAA.
63 HITECHIn 2009, the American Recovery and Reinvestment Act of 2009 (ARRA) was signed into law.Health Information Technology for Economic and Clinical Health Act (HITECH) – was a key part of ARRA.Expanded and changed some regulations to promote the adoption and meaningful use of health information technology.HITECH Act addresses the privacy and security concerns associated with the electronic transmission of health information and electronic medical records.
64 The role of Health ITHIT enables integrated tx. by linking programs, services and providersHIT can help providers:Communicate and collaborate between providers and programsTrack progress of those who leave a programReduce redundancy between programs and providersIncrease delivery of Evidence-based careExtend the efficiency of the workforce.Increased accessibility to health records raises questions of how to ensure pt. confidentiality and trust.Functionality to promote integrated care while protecting privacy and confidentiality.
65 HITECHHIPAA Privacy, Security, & Enforcement Rules apply directly to business associates (BAs)Expanded definitions of BAs (HIOs, e-Prescribing Gateways, data transmission services), and requirement of Revised agreements – to strengthen privacy.Marketing, Fundraising, & Sale of PHIStronger patient rightsStronger enforcement & penaltiesBreach notificationRevised Notice of Privacy PracticesRevised BA agreements
66 UCLA – Integrated Substance Abuse Programs Thank You!Sherry Larkins, Ph.D.UCLA – Integrated Substance Abuse ProgramsWill be adding to this…
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