HIPAA Law: Psychiatric Disclosure Fact and Myth
I was on the Diane Rehm Show on NPR last week, discussing Congressman Murphy’s “Helping Families in Mental Health Crisis Act,” Bill HR 3717, along with Congressman Murphy and Dr. Fuller Torrey of the Treatment Advocacy Center. I was booked as the opponent of the bill, which isn’t quite accurate. There are many parts of the bill I think are valuable.
What I oppose is Congressman Murphy’s and Dr. Torrey’s characterization of two things when it comes to parents of adult children with severe mental illness. First, that not passing the bill means we can look forward to more mass shootings; and second, that the Health Insurance Portability and Accountability Act of 1996 (HIPAA) law is an iron-clad, no disclosure barrier to parents getting information from doctors. That’s not entirely true.
HIPAA Law Intention and Provisions
When HIPAA was passed in 1996, the intention was twofold. First, it allowed people to get insured when they moved to a different job by tightening rules about how insurance companies can calculate lapses in coverage and shortening the period of time they could exclude pre-existing conditions. Second, it established rules around the privacy of an individual’s medical information to prevent fraud and protect privacy. Exceptions were made to the privacy rules to allow healthcare providers to disclose information to insurance companies processing payments for services, law enforcement when required to do so by subpoena or existing law.
But there are allowances in HIPAA law that allows healthcare providers to disclose diagnoses, treatment plans, or other medical information to family members of a patient without needing forms or signatures. The United States Department of Health and Human Services (HHS) Office of Civil Rights website states:
A health care provider or health plan may also share relevant information if you are not around or cannot give permission when a health care provider or plan representative believes, based on professional judgment, that sharing the information is in your best interest.
Granted, if the patient is present and says not to disclose his or her information to the family member, the doctor cannot, but this allowance puts the judgment as to what is best for the patient in the medical professional’s hands, not the patient’s.
The law also specifically allows psychotherapy notes and history to be released without patient consent if it is used, “to avert a serious and imminent threat to public health or safety.” I agree, this should be modified to change the "and" between "serious and imminent" to "or," and it should take into account not only the safety of the public, but also the safety of the patient.
Get a Power of Attorney If HIPPA Law Worries You
If you are the parent of an adult child with a severe mental illness you can formalize your right to information by having your child sign a durable medical power of attorney. It’s an easy to use form that gives the patient the right to allow a person or persons he or she designates to have the right to as little as access to medical information to as much as determining whether life support should be terminated. It’s a good idea to have this form signed by all of your unmarried children, in case of accident or injury. The form is free and does not require an attorney.
As Roman law originated and United States law perpetuates, ignorantia legis non excusat – ignorance of the law is no excuse. I’ve encountered several doctors who are unaware of these provisions of the law, and when I send them to the Department of Health and Human Services (HHS) website, they are surprised to find their hands aren’t as tied as they thought.
Hickey, C. (2014, June 12). HIPAA Law: Psychiatric Disclosure Fact and Myth, HealthyPlace. Retrieved on 2019, July 19 from https://www.healthyplace.com/blogs/mentalillnessinthefamily/2014/06/hipaa-law-psychiatric-disclosure-fact-and-myth
Author: Chrisa Hickey
Otherwise, patient care is compromised.
At this rate, patients need to be told upon entering a treatment relationship, "you have the right to remain silent" because anything you say can and will be held against you.
Psychiatrists and therapists are becoming agents of the police and of social control.
Most mentally ill patients are harmless and the media and these types of reactive bills create and add such stigma to where mental illness is equated with dangerousness.
Most mentally ill patients will be victims of crime not perpetrators.
Our has society has gone too far in accepting that medication is magic. It is not and it causes more problems than the illness itself for many people in terms of side effects that are intolerable and new symptoms that that more problematic than the original complaint.
We have abandoned talk therapy where coping skills, and support are needed for survival.
It is a sad state of affairs, honestly.