What Mental Health Information may be shared? Guidance on the HIPAA Privacy Rule available

The Health Insurance Portability Act (HIPAA) Privacy Rule provides consumers with important privacy rights and protections with respect to their health information, including mental health.  In January 2013, the Department of Health and Human Services (HHS) issued the final regulations modifying the HIPAA Privacy, Security, Enforcement and Breach Notification Rules as required by the Health Information Technology for Economic and Clinical Health Act of 2009 (HITECH).

In response to questions regarding the new regulations, HHS recently issued guidance regarding when it is appropriate for a health care provider to share an individual’s protected health information (PHI), including  mental health information, with people other than the patient. 

The guidance clarifies the HIPAA Privacy Rule regarding when it is appropriate for a health care provider to:

  • Communicate with a patient’s family, friends, or others involved in the patient’s care;
  • Communicate with family members about a patient’s mental health information when the patient is an adult;
  • Communicate with the parent of a patient who is a minor, including when a parent has the right to access a minor child’s protected health information as the child’s personal representative;
  • Consider the patient’s capacity to agree or object to the sharing of their information to determine whether disclosing the information to family members, friends or other people involved in the patient’s care or payment of care is in the patient’s best interest;
  • Involve a patient’s family members, friends or others involved in the patient’s care when the patient fails to take their medication or adhere to therapy;
  • Listen to family members about the patient receiving mental health treatment;
  • Communicate with family members, law enforcement , or other persons when the health care provider believes that the patient might hurt him/herself or others; and
  • Notify law enforcement, after receiving an official request, about the release of a patient who was brought in for a temporary psychiatric hold.

In addition, the guidance provides additional information about the HIPAA Privacy Rules’ heightened protections afforded to psychotherapy notes, and the limited exceptions when those notes may be disclosed.

For more information regarding the HIPAA Privacy Rule and the disclosure of mental health information, please contact your Trust Fund lawyer.

By Ezekiel Carder | March 17, 2014

Legal Developments