The Health Insurance Portability and Accountability Act of 1996 ("HIPAA").
What is HIPPA?
The HIPAA Privacy Rule provides federal protections for consumers with important privacy rights and protections with respect to their health information, including important controls over how their health information is used and disclosed by health plans and health care providers. Ensuring strong privacy protections is critical to maintaining individuals’ trust in their health care providers and willingness to obtain needed health care services, and these protections are especially important where very sensitive information is concerned, such as mental health information. At the same time, the Privacy Rule recognizes circumstances arise where health information may need to be shared to ensure the patient receives the best treatment and for other important purposes, such as for the health and safety of the patient or others. The Rule is carefully balanced to allow uses and disclosures of information—including mental health information—for treatment and these other purposes with appropriate protections.
Questions and Answers about HIPAA and Mental Health:
Does HIPAA allow a health care provider to communicate with a patient’s family, friends, or other persons who are involved in the patient’s care?
Yes. In recognition of the integral role that family and friends play in a patient’s health care, the HIPAA Privacy Rule allows these routine – and often critical – communications between health care providers and these persons. Where a patient is present and has the capacity to make health care decisions, health care providers may communicate with a patient’s family members, friends, or other persons the patient has involved in his or her health care or payment for care, so long as the patient does not object. See 45 CFR 164.510(b). 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. A common example of the latter would be situations in which a family member or friend is invited by the patient and present in the treatment room with the patient and the provider when a disclosure is made.
Where a patient is not present or is incapacitated, a health care provider may share the patient’s information with family, friends, or others involved in the patient’s care or payment for care, as long as the health care provider determines, based on professional judgment, that doing so is in the best interests of the patient. Note that, when someone other than a friend or family member is involved, the health care provider must be reasonably sure that the patient asked the person to be involved in his or her care or payment for care.
In all cases, disclosures to family members, friends, or other persons involved in the patient’s care or payment for care are to be limited to only the protected health information directly relevant to the person’s involvement in the patient’s care or payment for care.
Does HIPAA provide extra protections for mental health information compared with other health information?
Generally, the Privacy Rule applies uniformly to all protected health information, without regard to the type of information. One exception to this general rule is for psychotherapy notes, which receive special protections. The Privacy Rule defines psychotherapy notes as notes recorded by a health care provider who is a mental health professional documenting or analyzing the contents of a conversation during a private counseling session or a group, joint, or family counseling session and that are separate from the rest of the patient’s medical record. Psychotherapy notes do not include any information about medication prescription and monitoring, counseling session start and stop times, the modalities and frequencies of treatment furnished, or results of clinical tests; nor do they include summaries of diagnosis, functional status, treatment plan, symptoms, prognosis, and progress to date. Psychotherapy notes also do not include any information that is maintained in a patient’s medical record. See 45 CFR 164.501.
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. Therefore, with few exceptions, the Privacy Rule requires a covered entity to obtain a patient’s authorization prior to a disclosure of psychotherapy notes for any reason, including a disclosure for treatment purposes to a health care provider other than the originator of the notes. See 45 CFR 164.508(a)(2). A notable exception exists for disclosures required by other law, such as for mandatory reporting of abuse, and mandatory “duty to warn” situations regarding threats of serious and imminent harm made by the patient (State laws vary as to whether such a warning is mandatory or permissible).
Is a health care provider permitted to discuss an adult patient’s mental health information with the patient’s parents or other family members?
In situations where the patient is given the opportunity and does not object, HIPAA allows the provider to share or discuss the patient’s mental health information with family members or other persons involved in the patient’s care or payment for care. For example, if the patient does not object:
- A psychiatrist may discuss the drugs a patient needs to take with the patient’s sister who is present with the patient at a mental health care appointment.
- A therapist may give information to a patient’s spouse about warning signs that may signal a developing emergency.
BUT:
- A nurse may not discuss a patient’s mental health condition with the patient’s brother after the patient has stated she does not want her family to know about her condition.
In all cases, the health care provider may share or discuss only the information that the person involved needs to know about the patient’s care or payment for care. See 45 CFR 164.510(b). Finally, it is important to remember that other applicable law (e.g., State confidentiality statutes) or professional ethics may impose stricter limitations on sharing personal health information, particularly where the information relates to a patient’s mental health.
When does mental illness or another mental condition constitute incapacity under the Privacy Rule? For example, what if a patient who is experiencing temporary psychosis or is intoxicated does not have the capacity to agree or object to a health care provider sharing information with a family member, but the provider believes the disclosure is in the patient’s best interests?
Section 164.510(b)(3) of the HIPAA Privacy Rule permits a health care provider, when a patient is not present or is unable to agree or object to a disclosure due to incapacity or emergency circumstances, to determine whether disclosing a patient’s information to the patient’s family, friends, or other persons involved in the patient’s care or payment for care, is in the best interests of the patient.1Where a provider determines that such a disclosure is in the patient’s best interests, the provider would be permitted to disclose only the PHI that is directly relevant to the person’s involvement in the patient’s care or payment for care.
This permission clearly applies where a patient is unconscious. However, there may be additional situations in which a health care provider believes, based on professional judgment, that the patient does not have the capacity to agree or object to the sharing of personal health information at a particular time and that sharing the information is in the best interests of the patient at that time. These may include circumstances in which a patient is suffering from temporary psychosis or is under the influence of drugs or alcohol. If, for example, the provider believes the patient cannot meaningfully agree or object to the sharing of the patient’s information with family, friends, or other persons involved in their care due to her current mental state, the provider is allowed to discuss the patient’s condition or treatment with a family member, if the provider believes it would be in the patient’s best interests. In making this determination about the patient’s best interests, the provider should take into account the patient’s prior expressed preferences regarding disclosures of their information, if any, as well as the circumstances of the current situation. Once the patient regains the capacity to make these choices for herself, the provider should offer the patient the opportunity to agree or object to any future sharing of her information.
If a health care provider knows that a patient with a serious mental illness has stopped taking a prescribed medication, can the provider tell the patient’s family members?
So long as the patient does not object, HIPAA allows the provider to share or discuss a patient’s mental health information with the patient’s family members. See 45 CFR 164.510(b). If the provider believes, based on professional judgment, that the patient does not have the capacity to agree or object to sharing the information at that time, and that sharing the information would be in the patient’s best interests, the provider may tell the patient’s family member. In either case, the health care provider may share or discuss only the information that the family member involved needs to know about the patient’s care or payment for care.
Otherwise, if the patient has capacity and objects to the provider sharing information with the patient’s family member, the provider may only share the information if doing so is consistent with applicable law and standards of ethical conduct, and the provider has a good faith belief that the patient poses a threat to the health or safety of the patient or others, and the family member is reasonably able to prevent or lessen that threat. See 45 CFR 164.512(j). For example, if a doctor knows from experience that, when a patient’s medication is not at a therapeutic level, the patient is at high risk of committing suicide, the doctor may believe in good faith that disclosure is necessary to prevent or lessen the threat of harm to the health or safety of the patient who has stopped taking the prescribed medication, and may share information with the patient’s family or other caregivers who can avert the threat. However, absent a good faith belief that the disclosure is necessary to prevent a serious and imminent threat to the health or safety of the patient or others, the doctor must respect the wishes of the patient with respect to the disclosure.
Can a minor child’s doctor talk to the child’s parent about the patient’s mental health status and needs?
With respect to general treatment situations, a parent, guardian, or other person acting in loco parentis usually is the personal representative of the minor child, and a health care provider is permitted to share patient information with a patient’s personal representative under the Privacy Rule. However, section 164.502(g) of the Privacy Rule contains several important exceptions to this general rule. A parent is not treated as a minor child’s personal representative when: (1) State or other law does not require the consent of a parent or other person before a minor can obtain a particular health care service, the minor consents to the health care service, and the minor child has not requested the parent be treated as a personal representative; (2) someone other than the parent is authorized by law to consent to the provision of a particular health service to a minor and provides such consent; or (3) a parent agrees to a confidential relationship between the minor and a health care provider with respect to the health care service.2 For example, if State law provides an adolescent the right to obtain mental health treatment without parental consent, and the adolescent consents to such treatment, the parent would not be the personal representative of the adolescent with respect to that mental health treatment information.
Regardless, however, of whether the parent is otherwise considered a personal representative, the Privacy Rule defers to State or other applicable laws that expressly address the ability of the parent to obtain health information about the minor child. In doing so, the Privacy Rule permits a covered entity to disclose to a parent, or provide the parent with access to, a minor child’s protected health information when and to the extent it is permitted or required by State or other laws (including relevant case law). Likewise, the Privacy Rule prohibits a covered entity from disclosing a minor child’s protected health information to a parent when and to the extent it is prohibited under State or other laws (including relevant case law). See 45 CFR 164.502(g)(3)(ii).
In cases in which State or other applicable law is silent concerning disclosing a minor’s protected health information to a parent, and the parent is not the personal representative of the minor child based on one of the exceptional circumstances described above, a covered entity has discretion to provide or deny a parent access to the minor’s health information, if doing so is consistent with State or other applicable law, and the decision is made by a licensed health care professional in the exercise of professional judgment.
At what age of a child is the parent no longer the personal representative of the child for HIPAA purposes?
HIPAA defers to state law to determine the age of majority and the rights of parents to act for a child in making health care decisions, and thus, the ability of the parent to act as the personal representative of the child for HIPAA purposes. See 45 CFR 164.502(g).
Does a parent have a right to receive a copy of psychotherapy notes about a child’s mental health treatment?
No. The Privacy Rule distinguishes between mental health information in a mental health professional’s private notes and that contained in the medical record. It does not provide a right of access to psychotherapy notes, which the Privacy Rule defines as notes recorded by a health care provider who is a mental health professional documenting or analyzing the contents of a conversation during a private counseling session or a group, joint, or family counseling session and that are separate from the rest of the patient’s medical record. See 45 CFR 164.501. Psychotherapy notes are primarily for personal use by the treating professional and generally are not disclosed for other purposes. Thus, the Privacy Rule includes an exception to an individual’s (or personal representative’s) right of access for psychotherapy notes. See 45 CFR 164.524(a)(1)(i).
However, parents generally are the personal representatives of their minor child and, as such, are able to receive a copy of their child’s mental health information contained in the medical record, including information about diagnosis, symptoms, treatment plans, etc. Further, although the Privacy Rule does not provide a right for a patient or personal representative to access psychotherapy notes regarding the patient, HIPAA generally gives providers discretion to disclose the individual’s own protected health information (including psychotherapy notes) directly to the individual or the individual’s personal representative. As any such disclosure is purely permissive under the Privacy Rule, mental health providers should consult applicable State law for any prohibitions or conditions before making such disclosures.
What options do family members of an adult patient with mental illness have if they are concerned about the patient’s mental health and the patient refuses to agree to let a health care provider share information with the family?
The HIPAA Privacy Rule permits a health care provider to disclose information to the family members of an adult patient who has capacity and indicates that he or she does not want the disclosure made, only to the extent that the provider perceives a serious and imminent threat to the health or safety of the patient or others and the family members are in a position to lessen the threat. Otherwise, under HIPAA, the provider must respect the wishes of the adult patient who objects to the disclosure. However, HIPAA in no way prevents health care providers from listening to family members or other caregivers who may have concerns about the health and well-being of the patient, so the health care provider can factor that information into the patient’s care.
In the event that the patient later requests access to the health record, any information disclosed to the provider by another person who is not a health care provider that was given under a promise of confidentiality (such as that shared by a concerned family member), may be withheld from the patient if the disclosure would be reasonably likely to reveal the source of the information. 45 CFR 164.524(a)(2)(v). This exception to the patient’s right of access to protected health information gives family members the ability to disclose relevant safety information with health care providers without fear of disrupting the family’s relationship with the patient.
Does HIPAA permit a doctor to contact a patient’s family or law enforcement if the doctor believes that the patient might hurt herself or someone else?
Yes. The Privacy Rule permits a health care provider to disclose necessary information about a patient to law enforcement, family members of the patient, or other persons, when the provider believes the patient presents a serious and imminent threat to self or others. The scope of this permission is described as follows:
The HIPAA Privacy Rule protects the privacy of patients’ health information but is balanced to
ensure that appropriate uses and disclosures of the information still may be made when necessary
to treat a patient, to protect the nation’s public health, and for other critical purposes, such as
when a provider seeks to warn or report that persons may be at risk of harm because of a patient.
When a health care provider believes in good faith that such a warning is necessary to prevent or
lessen a serious and imminent threat to the health or safety of the patient or others, the Privacy
Rule allows the provider, consistent with applicable law and standards of ethical conduct, to alert
those persons whom the provider believes are reasonably able to prevent or lessen the threat.
Further, the provider is presumed to have had a good faith belief when his or her belief is based
upon the provider’s actual knowledge (i.e., based on the provider’s own interaction with the
patient) or in reliance on a credible representation by a person with apparent knowledge or
authority (i.e., based on a credible report from a family member of the patient or other person).
These provisions may be found in the Privacy Rule at 45 CFR § 164.512(j).
Under these provisions, a health care provider may disclose patient information, including
information from mental health records, if necessary, to law enforcement, family members of the
patient, or any other persons who may reasonably be able to prevent or lessen the risk of harm.
For example, if a mental health professional has a patient who has made a credible threat to
inflict serious and imminent bodily harm on one or more persons, HIPAA permits the mental
health professional to alert the police, a parent or other family member, school administrators or
campus police, and others who may be able to intervene to avert harm from the threat.
If a doctor believes that a patient might hurt himself or herself or someone else, is it the duty of the provider to notify the family or law enforcement authorities?
A health care provider’s “duty to warn” generally is derived from and defined by standards of ethical conduct and State laws and court decisions such as Tarasoff v. Regents of the University of California. HIPAA permits a covered health care provider to notify a patient’s family members of a serious and imminent threat to the health or safety of the patient or others if those family members are in a position to lessen or avert the threat. Thus, to the extent that a provider determines that there is a serious and imminent threat of a patient physically harming self or others, HIPAA would permit the provider to warn the appropriate person(s) of the threat, consistent with his or her professional ethical obligations and State law requirements. See 45 CFR 164.512(j). In addition, even where danger is not imminent, HIPAA permits a covered provider to communicate with a patient’s family members, or others involved in the patient’s care, to be on watch or ensure compliance with medication regimens, as long as the patient has been provided an opportunity to agree or object to the disclosure and no objection has been made. See 45 CFR 164.510(b)(2).
Does HIPAA permit health care providers to share protected health information (PHI) about an individual who has mental illness with other health care providers who are treating the same individual for care coordination/continuity of care purposes?
HIPAA permits health care providers to disclose to other health providers any protected health information (PHI) contained in the medical record about an individual for treatment, case management, and coordination of care and, with few exceptions, treats mental health information the same as other health information. Some examples of the types of mental health information that may be found in the medical record and are subject to the same HIPAA standards as other protected health information include:
• medication prescription and monitoring
• counseling session start and stop times
• the modalities and frequencies of treatment furnished
• results of clinical tests
• summaries of: diagnosis, functional status, treatment plan, symptoms, prognosis, and progress to date.
HIPAA generally does not limit disclosures of PHI between health care providers for treatment, case management, and care coordination, except that covered entities must obtain individuals’ authorization to disclose separately maintained psychotherapy session notes for such purposes. Covered entities should determine whether other rules, such as state law or professional practice standards place additional limitations on disclosures of PHI related to mental health.
If an adult patient who may pose a danger to self stops coming to psychotherapy sessions and does not respond to attempts to make contact, does HIPAA permit the therapist to contact a family member to check on the patient's well-being even if the patient has told the therapist that they do not want information shared with that person?
Yes, under two possible circumstances:
1. Given that the patient is no longer present, if the therapist determines, based on professional judgment, that there may be an emergency situation and that contacting the family member of the absent patient is in the patient’s best interests; or
2. If the disclosure is needed to lessen a serious and imminent threat and the family member is in a position to avert or lessen the threat.
In making the determination about the patient’s best interests, the provider may take into account the patient’s prior expressed preferences regarding disclosures of their information, if any, as well as the circumstances of the current situation. In either case, the health care provider may share or discuss only the information that the family member involved needs to know about the patient’s care or payment for care or the minimum necessary for the purpose of preventing or lessening the threatened harm.
Additionally, if the family member is a personal representative of the patient, the therapist may contact that person. However, a provider may decide not to treat someone as a personal representative if the provider believes that the patient has been or may be subject to violence, abuse, or neglect by the personal representative, or the patient may be endangered by treating the person as the personal representative; and the provider determines, in the exercise of professional judgment, that it is not in the best interests of the patient to treat the person as the personal representative. See 45 CFR 164.502(g)(5).
Telehealth and HIPAA
What is telehealth?
The Health Resources and Services Administration (HRSA) of the U.S. Department of Health and Human Services (HHS) defines telehealth as the use of electronic information and telecommunications technologies to support and promote long-distance clinical health care, patient and professional health-related education, and public health and health administration. Technologies include videoconferencing, the internet, store and-forward imaging, streaming media, and landline and wireless communications. Telehealth services may be provided, for example, through audio, text messaging, or video communication technology, including videoconferencing
software. Health care providers will ordinarily conduct telehealth in private settings, such as in a clinic or office connecting to a patient who is at home or at another clinic. Providers should always use private locations and patients should not receive telehealth services in public or semi-public settings, absent patient consent or exigent circumstances. If telehealth cannot be provided in a private setting, covered health care providers should continue to implement reasonable HIPAA safeguards to limit incidental uses or disclosures of protected health information (PHI). Such reasonable precautions could include using lowered voices, not using speakerphone, or recommending that the patient move to a reasonable distance from others when discussing PHI. Video communication with the requirements of the Security Rule is used and often includes stronger security capabilities to prevent data interception and provide assurances they will protect ePHI by signing a HIPAA business associate agreement (BAA).