Legal and Ethical Foundations in Integrated BH Setting:

Foundations for Best Practices

Cathy Hudgins, PhD, LPC, LMFT, Asst Prof. , Counselor Education, Radford U. VASandra Rose, PhD, Director of BH: Goodwin Community Health Center, NHPeter Fifield, MS, BH Consultant, Families First Health and Support Center, NHSteve Arnault, MA, VP of Quality, Compliance and Integrated Care, CLM, NH

Collaborative Family Healthcare Association 14th Annual ConferenceOctober 4-6, 2012 Austin, Texas U.S.A.

Session # A5AOctober 6, 2012

Faculty DisclosurePlease include ONE of the following statements:

I/We have not had any relevant financial relationships during the past 12 months.

Objectives

1. Identify federal and state laws relating to consent and confidentiality in integrated settings.

2. Relay key interpretations of federal and state laws governing confidentiality and consent as they apply to integrated settings.

3. Identify sample practices and trend in the field with respect to informed consent and confidentiality integrated settings.

Learning AssessmentA 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.

PCPs BHPs

Are we the Same or Different? IC and Confidentiality

Regulatory Influences: IC and Confidentiality

HIPAA: Informed Consent

PCPs=BHPs

HIPAA –Confidentiality and IC: PCPs/BHP Comparison

• No distinction: No authorization required if health purpose. IC required by all providers.

• Psychotherapy Notes: “Mental health professional” recording/analyzing contents of a conversation in a session and “separated” from the rest of the record.”

• Excludes Rx, summary of dx, status, tx plan, sxs, px and progress.

45CFR 164.501

Psychotherapy Notes• “Mental health professional”

recording/analyzing contents of a conversation in a session and “separated” from the rest of the record.”

• Excludes prescriptions, summary of diagnosis, status, treatment plan, symptoms, prognosis and progress.

45CFR 164.501

HIPAA: Confidentiality

PCPs=BHPs(except “Psychotherapy Notes”)

42CFR Part 2: The Alcohol and Drug Confidentiality Law

• Purpose: To “ensure that an alcohol or drug abuse patient in a federally assisted alcohol or drug abuse program is not made more vulnerable by reason of the availability of his or her patient record than an individual who has an alcohol or drug problem and who does not seek treatment.”

42CFR Part 2:

Part 2

Requires notice of

rights

Restrictions on use and

disclosure of SUD information

Restrictions on re-

disclosure

Are you covered? Yes, if

Federally Funded

A “Program” (a person or group)

Are you a “Program”?

Inside a Medical Facility

You work in an identified unit with the center that holds itself out as providing and provides alcohol or drug

abuse diagnosis, treatment or referral for treatment

Your “primary function” is SUD diagnosis, treatment or referral and you are identified

as providers of such services.yes

SAMSHA 2011 FAQs: Applying the Substance Abuse Confidentiality Regulations 42CFR Part 2

yes

Or AND

yes

If Covered, Need

Notice to patients about Part 2 Rights

• Different elements from HIPAA (LAC has combined form)

Special protections for SUD information

• Requires specialized authorizations, even for treatment and payment purposes. • Requires authorizations even within an “integrated” unit” to other team members, if the provider is “program” embedded in the unit. • Requires authorizations for re-release of protected SUD information, even by those not a “program.”

Exceptions• Written authorization• Internal Communication within a “program” or “an entity

having direct administrative control” • Medical emergencies (only to medical personnel)• Court orders (not all of these)• Crimes at program or against program staff• Research• Audits and evaluation• Child Abuse (but only the specific action of neglect/abuse)• Qualified Service Organization/Business Associate Agreement.

Adapted from Legal Action Center: Confidentiality and Communication: A guide to the Federal Drug and Alcohol Confidentiality Law and HIPAA (2012)

Part 2: Informed Consent and Confidentiality

PCPs=BHPs

State Laws: Confidentiality

• Licensing Laws: Vary by discipline and state. • Often same for PCP and BHPs—In 13 states,

the privilege for BHPs is compared to that between lawyer and their client.

• No law specifying how the privilege is to be protected.

• Sensitivity test: the greater the sensitivity of information, the more protections (e.g., Berg v Berg, 2005).

Case Law: Confidentiality

• Berg vs. Berg (2005)-Father denied access to child’s record.

• NH Supreme court asserted that the therapist-client privilege may be even more compelling than that behind the usual physician-patient privilege because of the greater demand for confidence and trust that the patient needs to enter treatment, and the need to make disclosures important for psychotherapy vs. that which may be required in the treatment of physical ailments.

State Law: Confidentiality

PCPs ≈BHPs

Consider sensitivity of information, patient expectations and ethical guidelines for practice.

State Statutes: Informed Consent

• Varies by state and discipline.

NH Statute: Mental Health Practice: Chapter 330-A:15

• “A copy of the patient's mental health rights shall be posted in a prominent location in the office of the mental health practitioner.”

• “Mental Health Bill of Rights,” directs each licensee to provide patients information regarding office hours, fees, missed appointments, billing policies, and even to be informed that they are entitled “[to] a safe setting and to know that the services provided are effective and of a quality consistent with the standard of care within each profession and to know that sexual relations between a mental health provider and a client or former client are a violation of the law.” (MHP 502.02)

State Law: Informed Consent

PCPs ≠BHPs

BHPs vs. MHPs

Integrated careHealth and Behavior focus

Bill H and B codesShort sessions and duration

Specialty careDSM-IV codes

Bill CPT MH codesLonger sessions and intervals.

More sensitive material

Analogy: Coaching• Coaching-- “helping clients discover their goals for

improvement, define specific goals and strategies for reaching these goals and then enabling the client, through regular counseling, to achieve these goals” (from the Ethics Code of the International Coach Federation, cited by Dr. Harris, APAIT).

Coaching: A New Frontier Some Questions and Answers by Eric A. Harris, J.D., Ed.D. Risk Management Consultant The Trust

http://www.apait.org/apait/resources/articles/coaching.pdf (downloaded 9.29.12)

Regulation of Coaching• Coaching is considered within the scope of practice by psychologists.• “It is unlikely that psychologists would be able to escape licensing board

regulation by opening separate “coaching only” businesses even if they do not represent themselves as psychologists in providing these services.” (Harris, APAIT)

• When licensing boards receive complaints by psychologists providing coaching services, they will use the duck test--“If it waddles, quacks, and swims like a duck, it will be treated like a duck, even if you are calling it an elephant”. (Harris, APAIT)

• “The closer to psychotherapy, the higher the power differential, the more psychologically robust the techniques, the greater the level of regulatory oversight and the greater similarity of oversight to that provided to psychotherapy”. (Harris, APAIT)

Coaching: A New Frontier Some Questions and Answers by Eric A. Harris, J.D., Ed.D. Risk Management

Consultant The Trust

By Analogy:

BHPs will likely be regulated by their professional licensing boards even if they call themselves “BHPs” and are not doing traditional therapy or even billing for it.

As such, BHPs will be expected by their licensing board to comply with all rules including that for informed consent intended for traditional psychotherapy.

To the degree that regulations of BHPs differ from PCPS, procedures such as informed consent in integrated settings cannot be uniform for all providers.