Provisions in HR 3717, Helping Families in Mental Health Crisis Act that help parents get medical information they need to ensure their children follow up on treatment, get to appointments, and more (HIPAA and FERPA)

(Note: HIPAA Handcuffs and FERPA prevent families from knowing what medications kids are on, when next appointments are, what the diagnosis is and other information they need to help their chidren get better. The Helping Families in Mental Health Crisis Act provides exceptions that allow the information to be disclosed if it is needed in order to protect the person with mental illness, family members or others.)

TITLE III—HIPAA AND FERPA CAREGIVERS

SEC.   301.   PROMOTING   APPROPRIATE   TREATMENT   FOR MENTALLY  ILL  INDIVIDUALS  BY  TREATING THEIR     CAREGIVERS      AS    PERSONAL      REP- RESENTATIVES  FOR  PURPOSES  OF  HIPAA PRIVACY REGULATIONS.

(a)  CAREGIVER  ACCESS  TO  INFORMATION.—In  applying section 164.502(g) of title 45, Code of Federal Regulations, to an individual with a serious mental illness who does not provide consent for the disclosure of protected health information to a caregiver of such individual, the caregiver shall be treated by a covered entity as a personal representative     (as    described    under     such    section 164.502(g)) of such individual with respect to protected health information of such individual when the provider furnishing services to the individual reasonably believes it is necessary for protected health information of the individual to be made available to the caregiver in order to protect the health, safety, or welfare of such individual or the safety of one or more other individuals.

(b) DEFINITIONS.—For purposes of this section:

(1)  COVERED  ENTITY.—The  term  ‘‘covered  entity’’  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 responsibility for providing a basic need of such individual; or

(C)  a  personal  representative  of  the  individual as determined by the law of the State in which such individual resides.

(4) INDIVIDUAL WITH A SERIOUS MENTAL ILNESS.—The term ‘‘individual with a serious mental illness’’  means,  with  respect  to  the  disclosure  to  acaregiver 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; and

(ii)  results  in  functional  impairment of the individual that substantially interferes with or limits one or more major life activities of the individual.

SEC.  302.  CAREGIVERS  PERMITTED  ACCESS  TO  CERTAIN EDUCATION RECORDS UNDER FERPA.

Section 444 of the General Education Provisions Act

(20 U.S.C. 1232g) is amended by adding at the end the following new subsection:

‘‘(k) DISCLOSURES  TO  CAREGIVERS  OF  THE  MENTALLY ILL.—

‘‘(1)  IN  GENERAL.—Nothing in this  Act,  the Elementary  and  Secondary  Education  Act  of  1965, or the Higher Education Act of 1965 shall be construed  to  prohibit  an  educational  agency  or  institution from disclosing, to a caregiver of an individual with a serious mental illness who has not explicitly provided consent to the agency or institution for the disclosure  of  protected  health  information,  an  education record of such individual if a physician, psychologist, or other recognized mental health professional or paraprofessional acting in his or her professional or paraprofessional capacity, or assisting in that capacity reasonably believes such disclosure to the caregiver is necessary to protect the health, safety, or welfare of such individual or the safety of one or more other individuals.

‘‘(2) DEFINITIONS.—In this subsection:

‘‘(A)  CAREGIVER.—The  term ‘caregiver’

means, with respect to an individual with a serious mental illness, a family member or immediate past legal guardian who assumes a primary responsibility  for providing  a basic  need of such individual (such as a family member or past  legal  guardian  of  the  individual  who  has assumed the responsibility of co-signing a loan with the individual).

‘‘(B)     EDUCATION RECORD.—Notwithstanding  subsection  (a)(4)(B),  the  term  ‘education record’ shall include a record describedin clause (iv) of such subsection.

‘‘(C)  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—

‘‘(i) is 18 years of age or older; and

‘‘(ii) 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; and

‘‘(II) results in functional impairment  of  the  individual  that  substantially interferes with or limits one or more major life activities of the individual.’’