HIPAA Provisions of HR 2646, Helping Families in Mental Health Crisis Act

HIPAA (Health Insurance Portability and Accountability Act) is a patient confidentiality law that prevent the disclosure of medical information including to parents of persons with mental ilness. FERPA (Family Educational Rights and Privacy Ac)t is a similar law that limits the medical information schools may disclose including to parents of persons with mental illness. Because these laws prohibit information from being disclosed, parents of children over 18 with mental illness are unaware of diagnosis, treatment, appointments, and oher info they need to provide care to loved ones and prevent their needless deterioration. The Helping Families in Mental Health Crisis Act (2015, HR 2646) carves out a very limited exemption in HIPAA and FERPA so caregivers can receive important information about a mentally ill loved ones diagnosis, treatment and prognosis if that information is needed by the mom or dad to protect the health, safety or welfare of their family member.

The Helping Famillies in Mental Health Crisis Act allows an exception for disclosure of specific limited protected health information under HIPAA if all of the following criteria are met…:
(1) Such disclosure is for information limited to the diagnoses, treatment plans, appointment scheduling, medications, and medication-related instructions, but not including any personal psychotherapy notes.
(2) Such disclosure is necessary to protect the health, safety, or welfare of the individual or general public. (Note: This is the only condition that has to be met for disclosure of FERPA protected info)
 (3) The information to be disclosed will be beneficial to the treatment of the individual if that individual has a co-occurring acute or chronic medical illness.
(4) The information to be disclosed is necessary for the continuity of treatment of the medical condition or mental illness of the individual.
(5) The absence of such information or treatment will contribute to a worsening prognosis or an acute medical condition.
(6) The individual by nature of the severe mental illness has or has had a diminished capacity to fully understand or follow a treatment plan for their medical condition or may become gravely disabled in absence of treatment.

Discussion: The previous version of the bill (HR 3717) only required the second condition be met: i.e. the disclosure was needed to “protect health safety and welfare.” That is preferable approach. The additional criteria listed above are not in themselves problematic, but each will have to be documented, argued, and gives an opening for challenge. The mere complexity of these provisions pretty much guarantees that guardians of protected information will opt to not disclose.

Receipt of information from Caregivers

Guardians of protected healthcare information often hide behind HIPAA and FERPA to claim they cannot receive information from loved ones of persons with mental illness. That is not true. There is no prohibition in HIPAA or FERPA against receiving information. Families often have important information the doctors should know about: what meds worked, didn’t work, symptoms experienced, side effects, etc. The Helping Families in Mental Health Crisis Act (HR 2646) has an important provision addressing this:

(d) PROVIDER ACCESS TO INFORMATION.—Health care providers may listen to information or review medical history provided by family members or other caregivers who may have concerns about the health and well-being of the patient, so the health care provider can factor that information into the patient’s care.

AGE OF MAJORITY.—In applying (this section) an unemancipated minor shall be an individual under the age of 18 years.
(e) DEFINITIONS.—For purposes of this section: (1) COVERED ENTITY.—The term ‘‘covered en- tity’’ has the meaning given such term in section 106.103 of title 45, Code of Federal Regulations.
(2) PROTECTED HEALTH INFORMATION.—The term ‘‘protected health information’’ has the meaning given such term in section 106.103 of title 45, Code of Federal Regulations.
(3) CAREGIVER.—The term ‘‘caregiver’’ means, with respect to an individual with a serious mental illness—
(A) an immediate family member of such individual;
(B) an individual who assumes primary re sponsibility for providing a basic need of such individual;
(C) a personal representative of the individual as determined by the law of the State in which such individual resides;
 (D) can establish a longstanding involve ment and is responsible with the individual with a serious mental illness and the health care of the individual; and
(E) excludes an individual with a documented history of abuse.
(4) INDIVIDUAL WITH A SERIOUS MENTAL ILLNESS.—The term ‘‘individual with a serious mental illness’’ means, with respect to the disclosure to a caregiver of protected health information of an individual, an individual who—
(A) is 18 years of age or older; and
(B) has, within one year before the date of the disclosure, been evaluated, diagnosed, or treated for a mental, behavioral, or emotional disorder that—
(i) is determined by a physician to be of sufficient duration to meet diagnostic criteria specified within the Diagnostic and Statistical Manual of Mental Disorders;
(ii) results in functional impairment of the individual that substantially interferes with or limits one or more major life activities of the individual.
Such term includes an individual with autism spectrum disorder or other developmental disability if such individual has a co-occurring mental illness.