United States: 21st Century Cure For A "Broken" Mental Health System Includes HIPAA Clarification

Last Updated: January 9 2017
Article by William H. Maruca

U.S. Representative Tim Murphy (R-PA) has been a vocal advocate for mental health reform for a number of years. Part of his crusade is driven by his concern that the HIPAA privacy rule "routinely interferes with the timely and continuous flow of health information between health care providers, patients, and families, thereby impeding patient care, and in some cases, public safety." Congressman Murphy's efforts have resulted in the inclusion in the recently-passed 21st Century Cures Act of a provision entitled "Compassionate Communications on HIPAA" targeted at improving understanding of what mental health information can be shared with family members and caregivers.

The 21st Century Cures Act streamlines the drug approval process, authorizes $4.8 billion in new health research funding, including $1.8 billion for Vice President Joe Biden's "cancer moonshot" and $1.6 billion for brain diseases such as Alzheimer's, and provides grants to combat the opioid epidemic.

Of most interest to readers of this blog, the Act also calls for the Department of Health and Human Services (HHS) to clarify the situations in which HIPAA permits health care professionals to communicate with caregivers of adults with a serious mental illness to facilitate treatment. By December 13, 2017, the Secretary of HHS is required to issue guidance regarding when such disclosures would require the patient's consent; when the patient must be given an opportunity to object; when disclosures may be made based on the exercise of professional judgment regarding whether the patient would object when consent may not be obtained due to incapacity or emergency; and when disclosures may be made in the best interest of the patient when the patient is not present or is incapacitated. HHS is directed to address communications to family members or other individuals involved in the care of the patient, including facilitating treatment and medication adherence. Guidance is also required regarding communications when a patient presents a serious and imminent threat of harm to self or others. HHS is directed to develop model training materials for healthcare providers, patients and their families.

The law incorporates the Substance Abuse and Mental Health Administration's definition of the term "serious mental illness" as "a diagnosable mental, behavioral, or emotional disorder that results in serious functional impairment and substantially interferes with or limits one or more major life activities."

Importantly, the law neither changes existing regulatory exceptions under HIPAA nor directs HHS to modify them. Instead, it calls for further explanation of existing rules that are often poorly understood by providers, patients and caregivers alike or may actually be used inappropriately to thwart the flow of meaningful and helpful information leading to barriers to effective communication that would benefit patients and improve mental health outcomes.

An existing public safety exception permits a covered entity to use or disclose PHI if the covered entity, in good faith, believes the use or disclosure is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public; and the disclosure is made to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat.

The existing exception for caregivers permits disclosures to a family member, other relatives, or a close personal friend of the individual, or any other person identified by the individual, but only regarding PHI that is directly relevant to such person's involvement with the individual's health care or payment for care.

PHI may also be disclosed when the patient is present and provides consent, does not object to a disclosure of PHI to another individual accompanying them when given the opportunity to object, or where the covered entity reasonably infers from the circumstances, based on the exercise of professional judgment, that the patient does not object to the disclosure.

Other existing exceptions address emergency situations as well as cases where the patient is incapacitated, and permit disclosure of only the PHI that is directly relevant to the other person's involvement with the patient's care or payment.

The new law falls short of Rep. Murphy's previous legislative proposals. In 2015, Murphy introduced a bill entitled the Helping Families In Mental Health Crisis Act. which he said would "allow the doctor or mental health professional to provide the diagnosis, treatment plans, appointment scheduling, and prescription information to the family member and known caregiver for a patient with a serious mental illness. This change would apply for those who can benefit from care yet are unable to follow through on their own self-directed care." This bill was passed by the House by a wide margin but was not enacted.

While the new law does not expand HIPAA exceptions, it does make it more likely that those exceptions already on the books will be more clearly understood and implemented in cases involving serious mental illness.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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William H. Maruca
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