1. Legal and Ethical Foundations in Integrated BH Setting: Foundations for Best Practices Sandra Rose, PhD, Director of BH: Goodwin Community Health Center, NH Cathy Hudgins, PhD, LPC, LMFT, Asst Prof., Counselor Education, Radford U. VA Peter Fifield, MS, BH Consultant, Families First Health and Support Center, NH Steve Arnault, MA, VP of Quality, Compliance and Integrated Care, CLM, NH Collaborative Family Healthcare Association 13 th Annual Conference October 27-29, 2011 Philadelphia, Pennsylvania U.S.A. Session # October __, 2011 0:00 AM

2. Methodology Phone survey – Agencies – Stake-holders Content analysis – State law websites – Integrated care literature – Integrated systems manuals – Conference presentations

3. Objectives 1.Identify federal and state laws relating to consent and confidentiality in integrated settings. 2.Relay key interpretations of federal and state laws governing confidentiality and consent as they apply to integrated settings. 3.Identify sample practices and trend in the field with respect to informed consent and confidentiality integrated settings.

4. Definitions Informed Consent*: A communication process between a patient and a health care provider whereby information is exchanged thereby allowing for the provider to adjust the recommended treatment to meet the needs of the pt, and for the pt to understand the risks and benefits of the tx, and make a decision, without duress, to agree with the treatment. *Attorney Barbara Mahoney, NH, October, 2011

5. Definitions General consent: A signed statement demonstrating authority to release information for treatment, billing or health care operations. Should be obtained prior to the treatment initiation or at first available opportunity. Release: The document authorizing release of confidential health information.

6. Distinctions: BH/MH/SUD Services Health Center BHP Brief, consultant role SUD Specialty Care MHP Traditional psychotherapy SUD

7. Health Care Home MH SABH We: can be any of above.

8. A delicate balance: Pt Rights including privacy and informed decision making Efficient Medical flow Comprehensive Collaboration Treatment Efficacy

9. What Makes Us Different and How Does it Impact on Treatment? Confidentiality?Informed Consent?

10. Are We Different Than PCPs? Kind of Information More sensitive Stigma Risks of Disclosure Federal/State Laws/Ethics Informed Consent? Disclosure? Pt Expectations Privacy? Role? We are BH, MH and SUDS

11. What governs confidentiality? HIPAA Privacy Law 42CFR:Part 2State Statute and Regulations for Psychotherapy Case Law (Berg vs. Berg) Federal State licensing laws and regulations Federal or State Mandates safeguards for protection of general health information by health care providers- (Protected Health Information) Mandates safeguards for information specific to to alcohol and drug diagnosis, treatment and referral. Mandates information that is generated by communications with those in practice governed under the state licensing law. Rulings made in court that may impact on how existing law is interpreted or be used as precedents in legal cases that are similar.

12. HIPAA: Psychotherapy Notes Psychotherapy Notes: 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.

13. Psychotherapy notes: exclusions The definition in the privacy rule specifically excludes information pertaining to 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.

14. What governs confidentiality? HIPAA Privacy Law 42CFR:Part 2State Statute and Regulations for Psychotherapy Case Law (Berg vs. Berg) Federal State licensing laws and regulations Federal or State Mandates safeguards for protection of general health information by health care providers- (Protected Health Information) Mandates safeguards for information specific to to alcohol and drug diagnosis, treatment and referral. Mandates information that is generated by communications with those in practice governed under the state licensing law. Rulings made in court that may impact on how existing law is interpreted or be used as precedents in legal cases that are similar.

15. 42CFR Part 2 Imposes restrictions on the disclosure and use of patient SUD information. Requires notice of rights regarding the law to pts. Prohibits re-disclosure of information received from covered “programs”

16. Applicability: Who is Covered? 1.Federally funded. 2.A “Program” is defined as: A provider (other than medical) who holds itself out as providing, and provides alcohol or drug diagnosis, treatment or referral. An identified unit within a general medical facility which holds itself out as providing, and provides alcohol or drug diagnosis, treatment or referral. Medical staff in a general medical facility whose primary function is the provision of alcohol or drug dx, tx, or referral and identified as such providers.

17. Agency: Legal Action Center Generalist BH providers not covered. Re-release of protected info received from “programs” is prohibited even by medical providers. Specific “fresh” authorizations are required when releasing protected info out of agency. You can’t bill SUD diagnoses without specific authorization. Personal communication, September 2011: Attorney Katie O’Neil, Senior VP and HIV/AIDS Projects Director

18. Agency Interpretations: National Council No re-disclosure of information received by a covered “program” even if received by a primary care provider unless that information was already known to the medical provider Personal communication: M. Lardiere, VP, HIT and Stategic Development, National Council, Oct, 2011

19. Federal Law: Are we Different? Confidentiality HIPAA Separated Psychotherapy Notes? Yes: fresh release No: General consent for Tx payment, health care operations Part 2 SUD “program”? Yes: Part 2 fresh release * * All health providers must obtain fresh release for info received by “program”

20. What governs confidentiality? HIPAA Privacy Law 42CFR:Part 2State Statute and Regulations for Psychotherapy Case Law (Berg vs. Berg) Federal State licensing laws and regulations Federal or State Mandates safeguards for protection of general health information by health care providers- (Protected Health Information) Mandates safeguards for information specific to to alcohol and drug diagnosis, treatment and referral. Information that is generated by communications with those in practice governed under the state licensing law. Rulings made in court that may impact on how existing law is interpreted or be used as precedents in legal cases that are similar.

21. State Ex: NH Confidentiality Law OCCUPATIONS AND PROFESSIONS CHAPTER 330-A MENTAL HEALTH PRACTICE Section 330-A:32 330-A:32 Privileged Communications. – The confidential relations and communications between any person licensed under provisions of this chapter and such licensee's client are placed on the same basis as those provided by law between attorney and client, and nothing in this chapter shall be construed to require any such privileged communications to be disclosed, unless such disclosure is required by a court order. Confidential relations and communications between a client and any person working under the supervision of a person licensed under this chapter which are necessary and customary for diagnosis and treatment are privileged to the same extent as though those relations or communications were with the supervising person licensed under this chapter, unless such disclosure is required by a court order. This section shall not apply to hearings conducted pursuant to RSA 135-C:27-54 or RSA 464-A.Source. 1998, 234:1, eff. Oct. 31, 1998.

22. States with Privilege Statutes At least thirteen (13) states have Psychologist- Client Privileged Communications Statutes that are explicitly modeled on Attorney-Client Privilege: Alabama, Arizona, Arkansas, Georgia, Idaho, Kansas, Montana, New Hampshire, New Jersey, New York, Pennsylvania, Tennessee, Washington. (Center for Ethical Practice)

23. Legal Opinion: Risk Management for Confidential Communications In general, the risk of a lawsuit is higher the greater the sensitivity of the information (Abortion, HIV/AIDs, SUD, Mental Health) Expectations of confidentiality: Did the patient reasonably anticipate that the provider would release the information based on a general consent? Attorney Priscilla Kimball, personal communication, Oct, 2011

24. State Laws: Confidentiality: Are We Different? Likely no if no sensitive info: Untested for those licensed under MH laws but practicing as BH. BHP: Billing under H and B codes and keeping progress notes? Yes if sensitive information and/or covered Part 2 provider MH, SUD and/or BH billing under Psychotherapy Codes?

25. Federal: Are We Different? Informed Consent HIPAA No: All Need HIPAA notice Part 2 SUD? Yes: Need Part 2 Notice

26. State Law: Are We Different? Generic State Bill of Rights All Specific to Licensed BH/MH?SA Professions? e.g., NH MH Bill of Rights Pt must be informed: Ethical codes, provider credentials, tx is safe and effective, sex contact is a violation, office policies re. billing, fees.

27. NH: RSA330-A:15 Mental Health Client Bill of Rights. – The board shall develop a model statement of the patient's mental health rights based on the code of ethics of each licensed professional association and distribute it to all practitioners licensed under this chapter. A copy of the patient's mental health rights shall be posted in a prominent location in the office of the mental health practitioner.

28. BH Statutes on Informed Consent Maine, Louisiana, Missouri, Montana, New Hampshire, California, Wisconsin, Georgia, Colorado, Alabama, and Nevada.

29. State Law: Are We Different? Informed Consent Licensing Law BH Consulting Only? BH code? Untested CPT therapy codes? Yes (e.g., NHRSA:A15) Psychotherapy? Yes, (e.g., NH RSA:A:15)

30. Resources LAC: Part 2 Law, HIPAA and Part2 forms downloadable and book Confidentiality of Communications (LAC) www.lac.org SAMHSA: HIPAA info, FAQs on Part 2, the actual Part 2 law, and “The Confidentiality of Alcohol and Drug Abuse Patient Regulation and the HIPAA Privacy Rule: Implications for Alcohol and Substance Abuse Programs, 2004” at http://www.samhsa.gov/healthPrivacyhttp://www.samhsa.gov/healthPrivacy sandycrose@comcast.net

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