Session #C5a
October 6, 2012
The Integration of Behavioral Health
Notes into the EHR: Legal and Ethical
Perspectives
Kenneth Kushner, Ph.D.
Professor, University of Wisconsin Department of Family Medicine
Neftali Serrano, Psy.D.
Director, Primary Care Behavioral Health
Access Community Health Centers
Clinical Assistant Professor, University of Wisconsin Department of Family
Medicine
Mark Marnocha,Ph.D.
Associate Professor, University of Wisconsin Department of Family Medicine
Collaborative Family Healthcare Association 14th Annual Conference
October 4-6, 2012 Austin, Texas U.S.A.
S
Faculty Disclosure
Please include ONE of the following statements:
We have not had any relevant financial relationships
during the past 12 months.
Objectives
S Describe how HIPAA regulations pertain to the inclusion of
behavioral health records in EHR’s
S Describe how the Wisconsin statutes pertain to the inclusion of
behavioral health records in EHR’s
S Describe how the American Psychological Association ethics code
pertains to the inclusion of behavioral health records in EHR’s
S Discuss the potential policy implications of current policies
regarding the inclusion of behavioral health records in EHR’s
Learning Assessment
A learning assessment is required for CE credit.
Attention Presenters:
Please incorporate audience interaction through a
brief Question & Answer period during or at the
conclusion of your presentation.
This component MUST be done in lieu of a written
pre- or post-test based on your learning objectives to satisfy accreditation
requirements.
Why this Presentation?
“Though it comes as a surprise to some, BHC consultation
notes are primary care records and should not be treated any
differently from other primary care notes.”
Robinson and Reiter, Behavioral Consultation and Primary Care: A
Guide to Integrating Services
Why this Presentation?
Overview of Presentation
S HIPAA
S An example of state law
S Wisconsin statutes and regulations
S An example of a professional society
S American Psychological Association
Disclaimer
S We are not lawyers
S We suggest you consult your attorneys before making
decisions relevant to laws governing your practices
The Health Insurance Portability
and Accountability Act of 1996
(HIPAA)
S
HIPAA
S Part I was enacted in 1996
S 349 pages
S Part II became effective in 2004
S 419 pages
S Contains the privacy and security rules
HIPAA
S How many people have read HIPAA in its entirety?
HIPAA
S Pertains only to electronic medical records
S Does not make a distinction between “behavioral health”
and “mental health” information
S Mental health is barely mentioned in Part 1 other than to
state that mental health information is considered health
information
HIPAA
S Part II makes no restrictions regarding the release of mental
health information per se
S Nor does it make a distinction between information
provided by physicians versus other health professionals, eg
psychologists
S It does make a distinction regarding “psychotherapy notes”
HIPAA
S Defines “psychotherapy notes” as:
“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. Psychotherapy notes excludes
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.” (Part II, p. 82805)
HIPAA
S In the commentary to part II, “psychotherapy notes” are
clearly defined as “process” notes, as opposed to “progress”
notes
S These are kept separate from the rest of the medical records
S Separate and specific consent is required to release
“psychotherapy notes”, but not “progress notes”
HIPAA
S Consent is required to disclose information to carry out
“treatment, payment, or health operations”
S There are exceptions for emergencies
S With the exception of “psychotherapy notes” there are no
special requirements for mental health information or for
mental health professionals
HIPAA
S The “minimum necessary” standard (in §164.502 ):
S “b) Standard: Minimum necessary. (1) Minimum necessary
applies. When using or disclosing protected health information or
when requesting protected health information from another
covered entity, a covered entity must make reasonable efforts to
limit protected health information to the minimum necessary to
accomplish the intended purpose of the use, disclosure, or request.
S (2) Minimum necessary does not apply. This requirement does not
apply to:
(i)Disclosures to or requests by a health care provider for treatment
HIPAA
S Summary of implications of HIPAA
S With the exception of “psychotherapy notes”, behavioral
health information is treated as being equivalent to other
medical information, regardless of the health professional
entering it in the EHR
S Because it is for diagnosis and treatment, behavioral health
information may be treated the same as any primary health
care information within a covered entity
S The same informed consent procedures for treatment and
release of information are required for behavioral health
information as for other primary care information
HIPAA
S HIPAA regulations are superseded by state laws concerning
privacy if the state laws are more stringent that HIPAA
Wisconsin State Law
S
An Exploration of Wisconsin State Code
Wisconsin Chapter 455:
Psychology Examining Board
S 455.08 Rules and code of ethics.
The examining board shall adopt such rules as are
necessary under this chapter and shall, by rule, establish a
reasonable code of ethics governing the professional
conduct of psychologists, using as its model the "Ethical
Standards of Psychologists", established by the American
Psychological Association. The primary intent of this code
shall be to assure that licensed psychologists limit their
practices to those specialties in the field of psychology which
they are qualified to practice. Every person who holds a
license to practice psychology in this state shall be governed
and controlled by such code of ethics.
S Cross-Reference: See also Psy and ch Psy 5, Wis. adm.
code.
Psy 5.01 Professional (mis)Conduct
(12) Revealing facts, data, information,
records or communication received
from a client in a professional capacity
except in the following circumstances:
(e) Use of case history material for
teaching or research purpose, or
(a) With the informed consent of the client
in textbooks or other literature,
or the client’s authorized
provided that proper
representative.
precautions are taken to conceal
the identity of the client.
(b) With prior notification to the client at the
time the information was elicited of the
use and distribution of the information.
(c) If necessary to prevent injury to the
client or another person.
d) Pursuant to the lawful order of a court
of law.
(f) Where otherwise permitted or
required under ss. 51.30 and
146.82, Stats.
(g) When required by federal or
state law.
ss 51.30 Definition of Informed Consent
(for State Mental Health Facilities)
(2) Informed consent. An informed consent for
disclosure of information from court or treatment
records to an individual, agency, or organization must
be in writing and must contain the following: the name
of the individual, agency, or organization to which the
disclosure is to be made; the name of the subject
individual whose treatment record is being disclosed;
the purpose or need for the disclosure; the specific type
of information to be disclosed; the time period during
which the consent is effective; the date on which the
consent is signed; and the signature of the individual or
person legally authorized to give consent for the
individual.
146.82(1) Confidentiality of patient
health care records
Confidentiality. All patient health care records shall
remain confidential. Patient health care records may
be released only to the persons designated in this
section or to other persons with the informed consent
of the patient or of a person authorized by the
patient.
However, there is permission for a free exchange of information….
146.82(2) Access without informed consent.
(a)
Notwithstanding sub. (1), patient health care records shall be released upon request
without informed consent in the following circumstances:
1. To health care facility staff committees, or accreditation or health care services review
organizations for the purposes of conducting management audits, financial audits,
program monitoring and evaluation, health care services reviews or accreditation.
2. To the extent that performance of their duties requires access to the records, to a health care
provider or any person acting under the supervision of a health care provider or to a person
licensed under s. 256.15, including medical staff members, employees or persons serving in
training programs or participating in volunteer programs and affiliated with the health care
provider, if any of the following is applicable:
a. The person is rendering assistance to the patient.
b. The person is being consulted regarding the health of the patient.
c. The life or health of the patient appears to be in danger and the information contained
in the patient health care records may aid the person in rendering assistance.
Implications of Wisconsin Law
S 5.01(12)f appears to allow proper Professional
Conduct to be guided by 146.82, which supports the
unimpeded flow of information pertaining to patient
health care, emergent or otherwise.
S 146.82(2)a.2 appears to grant the sort of
communication required for integrated behavioral
health-care.
S 5.01(12)b appears to allow “prior notification” to
have validity equivalent to informed consent.
Hmm…
S It appears that the flow of information adequate for
integrated care (outside the state mental health system) is
NOT professional misconduct, and is expressly permitted
by the rules and statutes cited in 501(12).
S The APA Code is invoked as a model for a state code of
ethics, though the actual Wisconsin state code of conduct
is largely a listing of exceptions/violations, rather than
general ethical principles and specifics (“Chapter Psy 5
CONDUCT”).
APA Ethics Code
S
Exemplars From Relevant
Sections of the APA Code
Section
Principle D: Justice
Applicability
Access to mental health services is
scarce, especially for some
populations and PCBH seeks to
address this justice issue. Without
seamless communication integrated
care models break down.
Standard 3.09: Cooperation with Other Explicit indication for collaborative
Professionals
work for the patient's benefit.
Comment
Important to the discussion is the
reality of access barriers to care inappropriate information sharing
protections becomes one of them
Implied is the responsibility to
collaborate
Standard 3.10 Informed Consent
a.Patient's should consent explicitly to
receive services. d. Documentation is
necessary.
Standard 4.01: Maintaining
confidentiality
Reasonable precautions to protect
confidential information
Standard 4.02: Discuss limits of
confidentiality
The term "discussion" appears several
Discussion with patients regarding the times with regard to informed consent
limits of confidentiality, foreseeable
and confidentiality. This is an aspect
uses of the information generated
that needs to be clarified as medicine
through psychological activities (at the has differing standards of consent
outset)
which do not (cannot) involve verbal
discussion
Exemplars From Relevant
Sections of the APA Code
Section
Standard 4.04: Minimizing intrusions
on privacy
Applicability
Comment
Discussion in consultations of only
germane information for the purpose
of communication and only with
persons clearly concerned with such
matters
Principle of restricting nature of
information to "need to know". Lends
itself to the need for appropriate
documentation and use of language.
Standard 4.05: Disclosures
May disclose with consent or when
permitted by law to obtain appropriate
professional consultations
Standard 6: Record Keeping & Fees
The importance of record keeping is
introduced with continuity of care
Documentation necessary for
alluded to, but mostly with the
continuity of care (but related to "later"
implication of transfer of records to
care)
another MH professional who will take
over care
Standard 6.02b: Maintenance,
dissemination, and disposal of
confidential records of professional
and scientific work
Information entered into databases
and record systems need to be
protected.
Standard 10: Therapy (.01)
Requirements for informed consent
The specific content of informed
including nature, course of therapy,
consent is discussed, again with
fees, involvement of third parties, and
provision for "discussion."
provide opportunity for discussion
This seems to apply to research but
may apply to EHR. The masked PI is
clearly unreasonable for a medical
environment.
Implications of APA Ethics
Code
S
There is no section labeled “Exactly how to behave ethically in an integrated primary care
environment.” The ethics code does not preclude integrated care, but was clearly not written with
an integrated environment in mind.
S
The ethics code is clearly oriented to protection of the individual. Another ethical perspective,
oriented to population-based care, is the protection of large groups of people (justice).
S
Furthermore, the "consultant" role of the Behavioral Health Consultants falls outside of the scope
of the ethics code in that a formal treatment relationship is not established. The consultant works
to enhance the existing medical service and not establish an independent service and has
responsibility to both the PCP and patient in that order.
S
A key question is whether the standard informed consent used in medicine fulfills the spirit of the
ethics code.
S
In lieu of "discussion" which is often irrelevant and impossible in integrated primary care
behavioral health, is written consent acceptable?
Policy Implications
S
Summary of Policy
Implications
S
HIPAA, Wisconsin state law and the APA ethics code do not preclude the integration of
behavioral health information in EHRs within an integrated care model, given that proper
informed consent is obtained.
S
However, none of them directly address population-based models of care.
S
In particular the the APA ethics code needs to incorporate psychologist roles outside of the
“independent practitioner role” and reflect the population-based and consultation-based
perspective of integrated care.
S
Nothing in the APA code currently precludes operating in a seamless fashion within an
existing medical practice with a free flow of verbal and written information, but too much
emphasis is placed on “discussion” based informed consent. Current practitioners thus
have no ethical limits but also not much ethical guidance.
S
Applicability of the APA code will depend on the nature of the integrated care practice.
The more “independent” and free-standing the practice is/ behaves, the more applicable
the code elements become because of the nature of the relationship established with the
patient and the role of the practitioner.
S
It may make the most sense to craft this section of the code in conjunction with a major
medical association such as the AMA or AAFP.
Summary of Policy
Implications
S
Such collaboration is especially important since family physicians often obtain,
explore, diagnose, and treat many of the conditions/content/diagnoses seen in
MH settings.
S
So if the relationship and the depth of sharing are the criteria, then either primary
care notes need higher levels of protection (sometimes) or else we are health-care
generalists alongside our other primary care professionals.
S
APA needs further alignment with Integrated Care, Health Psychology and
Primary Care treatment models to better help us in the trenches and our licensing
boards to have good guidelines for risk management and ethical care.
S
What the laws say is distinct from the accumulation of legal interpretations and
precedents.
S
The EMR has unique risks for all of us. (eg, unauthorized copying and sale of lists of patients with
specific diagnoses, ABC News, 9/13/2012)
.
Q&A
S
Session Evaluation
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session.
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