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Legal and Ethical Foundations in Integrated BH Setting: Foundations for Best Practices Sandra Rose, PhD, Director of BH: Goodwin Community Health Center, NH Cathy Hudgins, PhD, LPC, LMFT, Asst Prof. , Counselor Education, Radford U. VA Peter Fifield, MS, BH Consultant, Families First Health and Support Center, NH Steve Arnault, MA, VP of Quality, Compliance and Integrated Care, CLM, NH Collaborative Family Healthcare Association 13 th Annual Conference October 27-29, 2011 Philadelphia, Pennsylvania U.S.A. Session # October __, 2011 0:00 AM

Legal and Ethical Foundations in Integrated BH Setting: Foundations for Best Practices

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Session # October __, 2011 0:00 AM. Legal and Ethical Foundations in Integrated BH Setting: Foundations for Best Practices. Sandra Rose, PhD, Director of BH: Goodwin Community Health Center, NH Cathy Hudgins , PhD, LPC, LMFT, Asst Prof. , Counselor Education, Radford U. VA - PowerPoint PPT Presentation

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Page 1: Legal and Ethical Foundations in Integrated BH Setting:  Foundations for Best Practices

Legal and Ethical Foundations in Integrated BH Setting: Foundations

for Best Practices

Sandra Rose, PhD, Director of BH: Goodwin Community Health Center, NHCathy Hudgins, PhD, LPC, LMFT, Asst Prof. , Counselor Education, Radford U. VAPeter 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 13th Annual ConferenceOctober 27-29, 2011 Philadelphia, Pennsylvania U.S.A.

Session #October __, 20110:00 AM

Page 2: Legal and Ethical Foundations in Integrated BH Setting:  Foundations for Best Practices

Methodology

• Phone survey– Agencies – Stake-holders

• Content analysis– State law websites– Integrated care literature– Integrated systems manuals– Conference presentations

Page 3: Legal and Ethical Foundations in Integrated BH Setting:  Foundations for Best Practices

Objectives1. 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.

Page 4: Legal and Ethical Foundations in Integrated BH Setting:  Foundations for Best Practices

Definitions

• Informed Consent*: A communication process between a patient and a health care provider whereby information is exchanged thereby allowing for the provider to adjust the recommended treatment to meet the needs of the pt, and for the pt to understand the risks and benefits of the tx, and make a decision, without duress, to agree with the treatment.

*Attorney Barbara Mahoney, NH, October, 2011

Page 5: Legal and Ethical Foundations in Integrated BH Setting:  Foundations for Best Practices

Definitions

• General consent: A signed statement demonstrating authority to release information for treatment, billing or health care operations. Should be obtained prior to the treatment initiation or at first available opportunity.

• Release: The document authorizing release of confidential health information.

Page 6: Legal and Ethical Foundations in Integrated BH Setting:  Foundations for Best Practices

Distinctions:BH/MH/SUD Services

Health CenterBHP

Brief, consultant role

SUD

Page 7: Legal and Ethical Foundations in Integrated BH Setting:  Foundations for Best Practices

Health Care Home

MH

SABH

We: can be any of above.

Page 8: Legal and Ethical Foundations in Integrated BH Setting:  Foundations for Best Practices

A delicate balance:

Pt Rights including privacy and informed

decision making

Efficient Medical flowComprehensive Collaboration

Treatment Efficacy

Page 9: Legal and Ethical Foundations in Integrated BH Setting:  Foundations for Best Practices

What Makes Us Different and How Does it Impact on Treatment?

Confidentiality?

Informed Consent?

Page 10: Legal and Ethical Foundations in Integrated BH Setting:  Foundations for Best Practices

Are We Different Than PCPs?

Kind of Information

•More sensitive•Stigma•Risks of Disclosure

Federal/State Laws/Ethics

•Informed Consent?•Disclosure?

Pt Expectations

•Privacy?•Role?

We are BH, MH and SUDS

Page 11: Legal and Ethical Foundations in Integrated BH Setting:  Foundations for Best Practices

What governs confidentiality?HIPAA Privacy Law

42CFR:Part 2 State Statute and Regulations for Psychotherapy

Case Law (Berg vs. Berg)

Federal Federal State licensing laws and regulations

Federal or State

Mandates safeguards for protection of general health information by health care providers- (Protected Health Information)

Mandates safeguards for information specific to to alcohol and drug diagnosis, treatment and referral.

Mandates information that is generated by communications with those in practice governed under the state licensing law.

Rulings made in court that may impact on how existing law is interpreted or be used as precedents in legal cases that are similar.

Page 12: Legal and Ethical Foundations in Integrated BH Setting:  Foundations for Best Practices

HIPAA: Psychotherapy Notes

• Psychotherapy Notes: 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.

Page 13: Legal and Ethical Foundations in Integrated BH Setting:  Foundations for Best Practices

Psychotherapy notes: exclusions

• The definition in the privacy rule specifically excludes information pertaining to 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.

Page 14: Legal and Ethical Foundations in Integrated BH Setting:  Foundations for Best Practices

What governs confidentiality?HIPAA Privacy Law

42CFR:Part 2 State Statute and Regulations for Psychotherapy

Case Law (Berg vs. Berg)

Federal Federal State licensing laws and regulations

Federal or State

Mandates safeguards for protection of general health information by health care providers- (Protected Health Information)

Mandates safeguards for information specific to to alcohol and drug diagnosis, treatment and referral.

Mandates information that is generated by communications with those in practice governed under the state licensing law.

Rulings made in court that may impact on how existing law is interpreted or be used as precedents in legal cases that are similar.

Page 15: Legal and Ethical Foundations in Integrated BH Setting:  Foundations for Best Practices

42CFR Part 2

Imposes restrictions on the disclosure and use of

patient SUD information.

Requires notice of rights regarding the law to pts.

Prohibits re-disclosure of information received from

covered “programs”

Page 16: Legal and Ethical Foundations in Integrated BH Setting:  Foundations for Best Practices

Applicability: Who is Covered?1. Federally funded. 2. A “Program” is defined as: • A provider (other than medical) who holds itself out as

providing, and provides alcohol or drug diagnosis, treatment or referral.

• An identified unit within a general medical facility which holds itself out as providing, and provides alcohol or drug diagnosis, treatment or referral.

• Medical staff in a general medical facility whose primary function is the provision of alcohol or drug dx, tx, or referral and identified as such providers.

Page 17: Legal and Ethical Foundations in Integrated BH Setting:  Foundations for Best Practices

Agency: Legal Action Center

• Generalist BH providers not covered. • Re-release of protected info received from

“programs” is prohibited even by medical providers.

• Specific “fresh” authorizations are required when releasing protected info out of agency.

• You can’t bill SUD diagnoses without specific authorization.

Personal communication, September 2011: Attorney Katie O’Neil, Senior VP and HIV/AIDS Projects Director

Page 18: Legal and Ethical Foundations in Integrated BH Setting:  Foundations for Best Practices

Agency Interpretations: National Council

• No re-disclosure of information received by a covered “program” even if received by a primary care provider unless that information was already known to the medical provider

Personal communication: M. Lardiere, VP, HIT and Stategic Development, National Council, Oct, 2011

Page 19: Legal and Ethical Foundations in Integrated BH Setting:  Foundations for Best Practices

Federal Law: Are we Different?Confidentiality

HIPAASeparated Psychotherapy

Notes?

Yes: fresh releaseNo: General consent for Tx payment , health care

operations

* All health providers must obtain fresh release for info received by “program”

Page 20: Legal and Ethical Foundations in Integrated BH Setting:  Foundations for Best Practices

What governs confidentiality?HIPAA Privacy Law

42CFR:Part 2 State Statute and Regulations for Psychotherapy

Case Law (Berg vs. Berg)

Federal Federal State licensing laws and regulations

Federal or State

Mandates safeguards for protection of general health information by health care providers- (Protected Health Information)

Mandates safeguards for information specific to to alcohol and drug diagnosis, treatment and referral.

Information that is generated by communications with those in practice governed under the state licensing law.

Rulings made in court that may impact on how existing law is interpreted or be used as precedents in legal cases that are similar.

Page 21: Legal and Ethical Foundations in Integrated BH Setting:  Foundations for Best Practices

State Ex: NH Confidentiality LawOCCUPATIONS AND PROFESSIONS CHAPTER 330-AMENTAL HEALTH PRACTICE

Section 330-A:32 330-A:32 Privileged Communications. – The confidential relations and communications between any person licensed under provisions of this chapter and such licensee's client are placed on the same basis as those provided by law between attorney and client, and nothing in this chapter shall be construed to require any such privileged communications to be disclosed, unless such disclosure is required by a court order. Confidential relations and communications between a client and any person working under the supervision of a person licensed under this chapter which are necessary and customary for diagnosis and treatment are privileged to the same extent as though those relations or communications were with the supervising person licensed under this chapter, unless such disclosure is required by a court order. This section shall not apply to hearings conducted pursuant to RSA 135-C:27-54 or RSA 464-A.Source. 1998, 234:1, eff. Oct. 31, 1998.

Page 22: Legal and Ethical Foundations in Integrated BH Setting:  Foundations for Best Practices

States with Privilege Statutes

At least thirteen (13) states have Psychologist-Client Privileged Communications Statutes that are explicitly modeled on Attorney-Client Privilege: Alabama, Arizona, Arkansas, Georgia, Idaho, Kansas, Montana, New Hampshire, New Jersey, New York, Pennsylvania, Tennessee, Washington.

(Center for Ethical Practice)

Page 23: Legal and Ethical Foundations in Integrated BH Setting:  Foundations for Best Practices

Legal Opinion: Risk Management for Confidential Communications

• In general, the risk of a lawsuit is higher the greater the sensitivity of the information (Abortion, HIV/AIDs, SUD, Mental Health)

• Expectations of confidentiality: Did the patient reasonably anticipate that the provider would release the information based on a general consent?

Attorney Priscilla Kimball, personal communication, Oct, 2011

Page 24: Legal and Ethical Foundations in Integrated BH Setting:  Foundations for Best Practices

State Laws: Confidentiality: Are We Different?

BHP: Billing under H and B codes

and keeping progress notes?

•Likely no if no sensitive info: Untested for those licensed under MH laws but practicing as BH.

MH, SUD and/or BH billing under Psychotherapy

Codes?

•Yes if sensitive information and/or covered Part 2 provider

Page 25: Legal and Ethical Foundations in Integrated BH Setting:  Foundations for Best Practices

Federal: Are We Different? Informed Consent

HIPAA

No: All Need HIPAA notice

Page 26: Legal and Ethical Foundations in Integrated BH Setting:  Foundations for Best Practices

State Law: Are We Different?

Generic State Bill of Rights

All

Page 27: Legal and Ethical Foundations in Integrated BH Setting:  Foundations for Best Practices

NH: RSA330-A:15

• Mental Health Client Bill of Rights. – The board shall develop a model statement of the patient's mental health rights based on the code of ethics of each licensed professional association and distribute it to all practitioners licensed under this chapter. A copy of the patient's mental health rights shall be posted in a prominent location in the office of the mental health practitioner.

Page 28: Legal and Ethical Foundations in Integrated BH Setting:  Foundations for Best Practices

BH Statutes on Informed Consent

• Maine, Louisiana, Missouri, Montana, New Hampshire, California, Wisconsin, Georgia, Colorado, Alabama, and Nevada.

Page 29: Legal and Ethical Foundations in Integrated BH Setting:  Foundations for Best Practices

State Law: Are We Different? Informed Consent

Licensing Law

BH Consulting Only?

BH code? Untested

CPT therapy codes? Yes (e.g., NHRSA:A15)

Psychotherapy?

Yes, (e.g., NH RSA:A:15)

Page 30: Legal and Ethical Foundations in Integrated BH Setting:  Foundations for Best Practices

Resources

• LAC: Part 2 Law, HIPAA and Part2 forms downloadable and book Confidentiality of Communications (LAC) www.lac.org

• SAMHSA: HIPAA info, FAQs on Part 2, the actual Part 2 law, and “The Confidentiality of Alcohol and Drug Abuse Patient Regulation and the HIPAA Privacy Rule: Implications for Alcohol and Substance Abuse Programs, 2004” at http://www.samhsa.gov/healthPrivacy

[email protected]

Page 31: Legal and Ethical Foundations in Integrated BH Setting:  Foundations for Best Practices

Session Evaluation

Please complete and return theevaluation form to the classroom monitor

before leaving this session.

Thank you!