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HIPAA Privacy Rules Considered in Recent Mental Health Bill

The House of Representatives recently passed a bill that discusses the importance of HIPAA privacy rules for patients being treated for mental health issues.

By Elizabeth Snell

The House of Representatives passed the Helping Families in Mental Health Crisis Act (H.R. 2646) last week, which has a provision stating that more clarity is needed around existing HIPAA privacy rules. It is important to reduce any confusion that may potentially hinder communication with mental health caregivers, the bill states.

House passes mental health bill with HIPAA privacy rule consideration

Furthermore, there is also greater clarification needed on how PHI can be disclosed. Greater training is also necessary for healthcare providers, lawyers, patients and their families when it comes to PHI disclosure situations, particularly when such information can be given without patient consent.

“When individuals with [serious mental illness], even after efforts to help them understand, have failed to care for themselves, there exists confusion in the health care community around what is currently permissible under HIPAA rules,” the bill explains. “This confusion may hinder communication with responsible caregivers who may be able to facilitate care for the patient with SMI in instances when the individual does not give permission for disclosure.”

The HIPAA Privacy Rule does address how healthcare organizations are required to treat patient records when an individual is being treated for mental health conditions. For example, healthcare providers are allowed to communicate with a patient’s family, friends, or other persons involved in the patient’s care.

“The provider may ask the patient’s permission to share relevant information with family members or others, may tell the patient he or she plans to discuss the information and give them an opportunity to agree or object, or may infer from the circumstances, using professional judgment, that the patient does not object,” the HIPAA rule states.

READ MORE: HHS Final Rule Differs from HIPAA Regulations on Data Sharing

HIPAA also specifies that there are special considerations around psychotherapy notes:

Psychotherapy notes are treated differently from other mental health information both because they contain particularly sensitive information and because they are the personal notes of the therapist that typically are not required or useful for treatment, payment, or health care operations purposes, other than by the mental health professional who created the notes.

Along with patient privacy considerations, the recently passed legislation also hopes to increase the amount of psychiatric hospital beds, bring accountability to mental health spending and help patients get treatment sooner. There are also provisions to reauthorize suicide prevention programs and authorize a minority fellowship program for mental health professionals.

Additionally, the legislation calls for the need to codify a Medicaid managed care regulation, which would allow optional state coverage of Institutions for Mental Disease services for adults.

The vote passed with a 422-2 vote, and had been reintroduced by House Energy & Commerce Oversight and Investigations Subcommittee Chairman Tim Murphy (R-PA) and Rep. Eddie Bernice Johnson (D-TX) last year.

READ MORE: Patient Privacy Concerns Eased with Senate Bill Progress

Murphy said in a statement that the vote “welcomes a new dawn of help and hope.”

“We are ending the era of stigma,” he maintained. “Mental illness is no longer a joke, considered a moral defect and a reason to throw people in jail. No longer will we discharge the mentally ill out of the emergency room to the family and say ‘Good luck, take care of your loved one, we’ve done all the law will allow.’ Today the House voted to deliver treatment before tragedy.”

Just last month, the American Hospital Association (AHA) announced its support of H.R. 2646, and the House Committee members’ efforts to reform the nation’s behavioral health system.

Previously, the AHA had voiced its concern over language in the original bill that related to HIPAA regulations and that patient fear of inappropriate PHI disclosure may have led to a refusal to seek treatment.

“We thank you for taking a responsible approach to this issue and adopting language requiring the Health and Human Services (HHS) Secretary to clarify the circumstances in which covered entities may disclose protected health information of a patient with a mental illness,” the AHA wrote in a letter to members of Congress. “We also thank you for including a requirement that the HHS Secretary identify, develop and disseminate model programs and materials for training patients and their families regarding their rights to protect and obtain protected health information.”

READ MORE: How HIPAA Rules Apply with Law Enforcement Investigations

The bill also calls for the creation of an Assistant Secretary for Mental Health and Substance Use (ASMHSU), which would replace the Administrator of the Substance Abuse and Mental Health Services Administration (SAMSHA).

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