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HIPPA, Ethics, Privacy & Law in Human Service Fields

Updated on July 20, 2017

HIPPA, mental health privacy, substance abuse treatment privacy

The Healthcare Information Portability Protection Act of 1996 provides important protections for clients engaged in mental health and/or substance abuse treatment services. This paper examines the legal and ethical implications involved with sharing protected health information (PHI), with non-covered entities, without first obtaining client consent to release requested information. Examination includes what defines a “covered entity” under HIPPA provisions. Further topics for discussion include striking a balance between client confidentiality rights, public protection concerns, criminal justice reentry programs, and collaborative partnerships between human service agencies and the criminal justice system.

Keywords: HIPPA, Human Services, Criminal Justice, Community Corrections, Mental Health/Substance Abuse Care, Patient Right to Confidentiality

Protecting Recipients of Mental Health Treatment:

HIPPA, Ethics, Privacy & Law in Human Service Fields

The 1996 addition of the Healthcare Information Portability Protection Act (HIPPA) was designed to streamline the transfer of medical information between healthcare providers and insurers . As technological advances occur, it becomes more commonplace for providers to electronically exchange protected health information (PHI). Congressional worry surrounding unauthorized access and spread of personal patient identifiers (PPI) led to the addition of further safeguards protecting patient right to confidentiality and limiting the ways that covered entities may distribute PPI without patient consent.

Generally, release of PHI is allowed without obtaining consent, under limited circumstances. These include exchange of PHI with other covered entities to (a) coordinate patient care (b) secure payment for services from a patient’s insurer. HIPPA mandates that covered entities exchange the least amount of information to facilitate the listed goals.

The expansion of PHI rules requires that psychotherapy notes be released only with a client’s written permission. Other types of release of information not requiring express verbal/written consent include contacting next of kin for medical emergency notification purpose, sharing the names and admission status from general hospital directories, and providing a certain amount of information about a patient’s condition in response to friend/family members’ inquiries. These exceptions are deemed matters of implied consent on the part of the patient. However, if a patient opts out of a hospital’s public directory system, personnel may not acknowledge that he/she is receiving treatment.

Disclosure of PHI to Law Enforcement Officials

As the scope of community correction’s initiatives widens, criminal justice and law enforcement officials seek to broaden the willingness of healthcare and social service providers to exchange PHI with those supervising citizens involved with the criminal justice system (Patrila & Fader-Towe, 2010). Alternatives to incarceration place community corrections officials in positions of authority, sometimes mirroring that of traditional corrections officials. Probation/parole officers and pretrial monitoring as a condition of early institutional release/bail highlight such circumstances.

While it is the position of some criminal justice authorities that people subject to court-ordered community supervision should be treated like inmates, with no expectation of privacy, HIPPA guidelines and various professional ethics codes, largely disagree. HIPPA places decisions regarding release of PHI to law enforcement officials in the hands of the medical/social service provider (Us Department of Health & Human Services (HHS), 2017). The wording of HIPPA permits release of identifiers like patient name, address, date of birth, date and time of admission/discharge, blood type and type of injury necessitating treatment (HHS, 2017). However, such release of PHI is mandated only under limited circumstances. Topping the list are situations involving expressed threat to harm self or others, reports or admissions relating to child/elder abuse and relayed information pertaining to domestic violence abuse (HHS, 2017). Even in cases where a court-order is presented, healthcare facilities are not obligated to disclose PHI, under federal statute. The guidelines leave much room for the discretion of the covered entity, when deciding if non-consensual information release is required (HHS, 2017) The federal guidelines are subject to applicable state law, when such law expressly provides tighter standards protecting patient PHI (Patrila & Fader-Towe, 2010).

Ethically, social service professionals recognize that protecting a client’s right to privacy is the cornerstone of the helping relationship (National Organization for Human Services, 2015). Mental health and substance abuse issues are sensitive topics that require adherence to stringent ethical guidelines (Corey, Schneider-Corey, Corey, & Callahan, 2015). If a client is admitted to an inpatient mental health/substance abuse facility, he/she is likely at one of the lowest points of the treatment process. Such environments are designed to be safe; providing an effective starting point on the road to change. The goals of the justice system and social service systems are sometimes conflictual. If a mental health worker realizes that release of PHI could land a client, in need of treatment, back in jail it is ethically compulsory to consider the client’s best interests (Corey, et al, 2015). For example, a client seeking treatment for a substance abuse relapse might be subject to the provisions of a community correction model. Whether the model is pretrial release or probation or parole is secondary to the issue. Officials carrying out criminal justice community supervision have the authority to incarcerate clients for status offenses (Kunkel, 2012). Status offenses include the further use of alcohol or other drugs by persons court-ordered not to do so (Kunkel, 2012). While a substance abuse counselor considers relapse as part of the client’s journey of recovery (Kougiali, Fasulo, Needs, & Van Leer, 2017), the criminal justice system labels relapse as a criminal offense.

Knowledge of the criminal justice system’s approach to handling clients with adjudicated/ pending criminal court/corrections obligations makes me hesitant to release PHI to these officials. I am considering the likelihood that a client would continue to receive comprehensive mental health/substance abuse treatment after an incarceration. Statistically, the criminal justice/corrections field does a poor job of rehabilitating clients with mental health or addictions diagnosis (Abernathy, 2015). While my goal is to help the client develop and maintain the skills required to lead a healthy and productive life, the criminal justice provider’s goal is to uphold the legal stipulations of a community corrections contract. The punitive nature of police, probation/parole, and pretrial systems is contradictory to the intent of social service systems. One structure exists to punish the offender and protect the public from lawbreakers, while the other strives to engender positive client outcomes. Utmost, social service professionals are obligated to protect and help the individual client achieve a healthy life (National Organization for Human Services, 2015). Therefore, release of PHI, in the absence of immediate public danger concerns, should be handled with caution

On the other hand, approaching a client and asking if he/she is willing to enter into a collaborative partnership with the supervision officer could be beneficial. This opens the door to discussions between the agencies and could positively influence the client’s outcome. In most cases, those with a history of substance abuse/mental health problems are obligated to agree to release of information to qualify for community supervision programs (Patrila & Fader-Towe, 2010). Typically, such releases encompass outpatient providers’; permitting the sharing of PHI with the client’s supervision officer (Kunkel, 2012). However, some clients agree to global PHI release conditions as a stipulation of compliance with court-ordered conditions of release (Kunkel, 2012). My knowledge of this pushes me to consider encouraging a client to comply with PHI release, under the premise that the therapist/social worker could engage in advocacy efforts on behalf of the client (Kunkel, 2012). Conversations surrounding best practice in reducing recidivism, successful treatment methods, and the commonality of relapse in early recovery could help the community corrections official see the supervisee’s relapse in a less punitive light (Bosse, 2011).

Special considerations apply when determining if release of substance abuse treatment records is appropriate. Honoring requests made by law enforcement for records containing information about a client’s substance abuse treatment history, without obtaining client consent, is prohibited under federal law 42 U.S.C. § 290dd-2 (Substance Abuse & Mental Health Services Administration (SAMHSA), 2017). Permissible release of substance abuse treatment records is outlined under 42 CFR Part 2 of federal legislation (SAMHSA, 2017). Commonly known as “part 2 providers,” is any person or organization engaging in education, treatment or prevention of substance abuse and regulated or funded by federal authorities (SAMHSA, 2017).

Limitations on release of clients’ protected substance abuse treatment information includes requests made by law enforcement agencies (SAMHSA, 2017). Cases where a client commits a crime on Part 2 provider program property or against the agency’s designated staff allows Part 2 programs to engage in health information exchange (HIE) with criminal justice entities (SAMHSA, 2017). Provisionally, substance abuse treatment agencies are mandatory reporters of certain crimes. If a client reports committing child/elder abuse, Part 2 providers are mandated to contact law enforcement agents (SAMHSA, 2017). Furthermore, any threats made by clients to engage in self injurious or harmful actions against others generates a duty to inform, as well (SAMHSA, 2017). The duty to inform is oft an open-ended requirement. This means discretion allows covered entities to exercise decision-making ability when deciding who ought to be informed (Corey, et al, 2015). Contacting the person against who the threat was made meets the standards outlined by the duty to inform provision. Client threat to harm self could be reported to other mental health service coordinators, ensuring the client is properly assessed for treatment (Corey, et al, 2015). Releasing PHI of clients receiving substance abuse services, without consent, to law enforcement is only permissible under qualifying scenarios.

Riverview & Doretha Dix State Psychiatric Hospitals, Maine

The Maine Department of Health & Human Services (DHS) governs procedural implementation of privacy practices at state run psychiatric hospitals. As such, DHS strives to protect the right of patients when determining appropriate sharing of PHI. Accordingly, both of Maine’s state psychiatric treatment facilities adhere to the provisions outlined by HIPPA and under federal law 42 U.S.C. § 290dd-2 (Maine Department of Health & Human Services (DHS), 2017). Therefore, the patient right to confidentiality form, provided to all patients upon admission, lists an abridged version of the limited circumstances allowable for non-consensual release of patient information to law enforcement officers. Without the written consent of the patient, DHS only allows reports of criminal conduct occurring at the hospital, patient disclosures pertaining to child/elder abuse, or threat of imminent harm to self or others be released to law enforcement (Maine DHS, 2017). Even uniformed officers, with arrest warrant in hand, will not be granted access to patient status or PHI (Maine DHS, 2017). The state of Maine has taken the road of granting patients even more safeguards than what is covered under HIPPA. HIPPA allows discretion of provider when requests for PHI come from law enforcement officers (DHHS, 2017).

Permitting the minimal amount of information necessary for a legitimate law enforcement inquiry consists of a three part test: (1) deidentified information will not suffice (2) the information sought is relevant to a stated and legitimate law enforcement inquiry, and (3) the scope of the request is no more than is necessary to fulfill the purpose of the request (Christman, n.d).

Divergent Philosophies & Mission: Human Services V. Policing

The right to remain free of unwarranted search and seizure is one of the most basic freedoms enjoyed by American citizens. However, in cases where a person is accused or convicted of a crime, these rights are rescinded in favor of controlling the wayward offender. For example, citizens incarcerated in a penal facility have little expectation of privacy and correctional staff may access PHI officially and incidentally (Bednar, 2003, para.6). Especially if the PHI is required to maintain the safety and functioning of the facility. Under Texas law, inmates are granted no medical information right to privacy (Bednar, 2003, para.12). However, HIPPA laws are stronger; preempting state laws by offering incarcerated offenders limited confidentiality of PHI (Bednar, 2003, para.12). Moreover, inmates released from correctional custody, to community corrections, reestablish all rights under HIPPA protections (Bednar, 2003, para.5). For purposes of HIPPA compliance, only health care providers within penal facilities are lawfully obligated under HIPPA (DHHS, 2017). Courts, law enforcement, and corrections officials are not guided by the premises listed in HIPPA guidelines (Abernathy, 2014, p.2). Public safety, punishment, and rehabilitation of offenders are goals of criminal justice systems (Abernathy, 2014, para.1). Knowledge of offender’s medical/mental health diagnosis is often considered a necessary portion of meeting these aims (Abernathy, 2014, para.3). The ability to access and locate people subject to criminal justice investigations and supervision, despite environment, further enhances this mission. A clash of ideals may occur when human service systems meet those intent on identification of crime and punishment (Abernathy, 2014, para. 2).

What happens when the roles of social workers and correction/criminal justice personnel collide? According to those serving society in a criminal justice capacity, overly-restrictive and misconstrued legal sanctions act to prevent successful systematic collaboration between social services and criminal justice structures (Abernathy, 2014, para.2). In my opinion, the biggest barrier to collaborative partnerships has nothing to do with misunderstandings or legal restrictions. It involves the perceptions and intent of the people working in the divergent systems.

Medical providers, social workers, and counselors operate from an ethical framework that strives to improve the condition of the individual, while fostering positive social welfare aims (National Organization for Human Service, 2015). Because most of the social service sector’s framework functions from a systematic theoretical perspective (Frankel & Gelman, 2012, p.12) assessing the individual condition is integrally linked with examination of how he/she has historically interacted with the systems in his life. Helping the individual to alter perceptions and leverage internal/external assets (Frankel & Gelman, 2012, p.14-15) is a benchmark of effective human service engagement.

For those employed within the criminal justice arena, the thought process is not usually one that considers much beyond an individual’s personal responsibility to adhere to the strictures set by society and the law. When a citizen deviates from these standards of conduct, criminal justice interventions pursue control methodology (Baker, 2015); determining rigorous restrictions on the offender. This process is designed from a more negative psychological stance; adhering to the principle that punishment and loss of freedom resolve the undesirable behaviors of the individual.

By nature, policing exposes officers to some of the most undesirable characteristics seen in humans (Baker,2015, para.11). An almost constant inundating of negative human relations and reactions promotes a mindset of distrust and suspicion in those pursuing careers in criminal justice (Baker,2015, para.11). This mistrust of others’ intentions develops into a type of rigid behavioral control complex; failing to endorse the premises guiding human service workers.

Social workers, medical professionals, and counselors are healers. The role of these professionals is not to judge the actions of a client/patient with harsh cynicism. Instead, it is to look beyond the surface of the presenting problems with living and develop a plan that helps the individual improve functioning and outcome (Frankel & Gelman, 2012, p.3-5). Respect for patient autonomy (National Organization for Human Services, 2015) and consideration of all internal/external determinants of success/failure are important facets of the approach to the helping profession. Placing strictures and controls on individual choices is not part of this equation. In fact, providing a framework for choice is the hallmark of a successful helper (National Organization for Human Services, 2015). Guiding the client to consider the negative and positive outcome potential for choices is thought to prompt positive life change. Conversely, criminal justice authorities adhere to a set of strictures that leaves little room for personal choice; instead instituting social and legal mandates and enforcing designated consequences when these mandates are violated (Baker, 2015). Police have difficulty understanding that a social service professional’s ethical and legal duty rests with assessing a client’s best interest and protection of the trust granted by the helping relationship. Instead, criminal justice officials may automatically assume that he/she is generally hated by the public and that non-police are inclined to be covertly uncooperative as he carries out his duties (Baker, 2015). Furthermore, lack of consideration for the larger causes of human behaviors lends itself to moral judgments against offenders (Baker, 2015).

Such differences in thinking creates a chasm between corrections/criminal justice systems and the field of social services. As the use of less punitive models of offender engagement spread (Slaght, 2002, p.23-24), the trust between human services workers and criminal justice interventionists should increase. Federal and state advocacy efforts focusing on protecting patients from interactions with criminal justice authorities, during treatment interventions, will shift toward working with these appointed officers; prospectively netting the best outcomes for clients that are caught amid criminal court sanctions. Further, the spread of inserting social work theory into criminal justice degree programs allows future officers a different take on the ways to handle the addicted and mentally ill offenders he/she encounters (Bosse, 2011). Members of both professions would do well to learn more about the methods, philosophies, and experiences that guide one another’s professional mission. If both systems can work together for the common good, individuals and society will benefit (Abernathy, 2014, para3). Human service workers will evidence less fear surrounding potential outcomes for clients, when a corrections/law enforcement official comes to call.

References

Abernathy, C. (2014). Corrections and reentry: Protected health information privacy framework for information sharing. Lexington, KY: Council of State Governments, American Probation and Parole Association.

Baker, J. (2015). Police (sociology). Research Starters: Sociology (Online Edition),

Bednar, A. L. (2003). HIPAA’s impact on prisoners’ rights to healthcare. Retrieved from https://www.law.uh.edu/healthlaw/perspectives/Privacy/030128HIPAAs.pdf

Bosse, M. (2011, November 14). Why police officers need to understand addiction | whitehouse.gov [Web log post]. Retrieved from https://obamawhitehouse.archives.gov/blog/2011/11/14/why-police-officers-need-understand-addiction

Christman, A. (n.d.). HIPAA Info. for law enforcement. Retrieved from Kansas Highway Patrol website: http://www.aele.org/hipaa-info.html

Corey, G., Schneider Corey, M., Corey, C., & Callahan, P. (2015). Issues and ethics in the helping professions [Brooks Cole Cengage Learning] (9th ed.). Retrieved from ISBN-13: 978-1-305-38945-8

Frankel, A. J., & Gelman, S. R. (2012). Case management: An intro to concepts & skills (3rd ed.). Chicago, IL: Lyceum Books.

Kougiali, Z. G., Fasulo, A., Needs, A., & Van Laar, D. (2017). Planting the seeds of change: Directionality in the narrative construction of recovery from addiction. Psychology & Health, 32(6), 639-664.

Kunkel, T. (2012). Substance Abuse and Confidentiality: 42 CFR Part 2. Retrieved from National Center for State Courts (NCSC) website: http://www.ncsc.org/sitecore/content/microsites/future-trends-2012/home/Privacy-and-Technology/Substance-Abuse.aspx

Maine Department of Health & Human Services (DHS). (2017). Privacy practices - index Maine DHHS: Riverview. Retrieved from State of Maine website: https://www1.maine.gov/dhhs/riverview/PrivacyPractices/index.html

National Organization for Human Services. (2015). Ethical standards for HS professionals.Retrieved from http://www.nationalhumanservices.org/ethical-standards-for-hsprofessionals

Patrila, J., & Fader-Towe, H. (2010). Information sharing in criminal justice -mental health collaboration: Working with HIPPA & other privacy laws. Retrieved from United States Bureau of Justice Assistance (BJA) website: https://www.bja.gov/Publications/CSG_CJMH_Info_Sharing.pdf

Prison Legal News. (2007, May 15). Escaped prisoner has little expectation of privacy. Prison Legal News. Retrieved from https://www.prisonlegalnews.org/news/2007/may/15/escaped-prisoner-has-limited expectation-of-privacy/

Slaght, E. (2002). Revisiting the relationship between social work and law enforcement. Journal of Community Practice, 10(2), 23-36.

Substance Abuse & Mental Health Services Administration (SAMHSA). (n.d.). Confidentiality

regulations FAQs | SAMHSA - Substance Abuse and Mental Health Services Administration. Retrieved from https://www.samhsa.gov/about-us/who-we-are/laws/confidentiality-regulations-faqs

US Department of Health & Human Services (HHS). (2017). HIPAA for professionals |HHS.gov. Retrieved from https://www.hhs.gov/hipaa/for-professionals/index.html

Us Health & Human Services (HHS). (2013). Summary of the HIPAA Privacy Rule | HHS.gov. Retrieved from https://www.hhs.gov/hipaa/for-professionals/privacy/laws-regulations/index.html

HIPPA Patient Rights

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Understanding your HIPPA rights

What is a covered entity

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Protected Health Information (PHI)

Patient Rights

  1. Health information is protected
  2. It typically requires a patient signed consent to release protected health info (PHI)
  3. There are circumstances where your right to privacy is not protected
  4. Understanding the difference between HIPPA and federal law 42 U.S.C. § 290dd-2 helps lssen fears surrounding receipt of substance abuse treatment services

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