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HIPAA provides protection to patients that cannot make their own health decisions, including people with mental health issues, patients with substance abuse, and children. HIPAA has special regulations on the disclosure of patient’s personal information, including terms and conditions of the disclosure, criteria for being recognized and “personal representative”, and limitations on the disclosure of medical records. HIPAA has special regulations on the disclosure of psychotherapy notes, and providing information to families in case of emergency.

Does HIPAA provide extra protections for mental health information compared with other health information?

There is not special HIPAA regulations for protection of mental health records and information, with the only exception that are psychotherapy notes. Psychotherapy notes are notes that are made by the healthcare provider during the individual and group sessions and that do not contain any information about diagnosis, prognosis, patient’s response to treatment, progress or pharmacological treatment. As a rule in this notes there is no applicable for treatment data. Psychotherapy notes are kept separately from the rest of patient’s records. Special protection of the psychotherapy notes and special attention to their storage is explained by the sensitive information they may contain, disclosure of which may be harmful to both the patient and his personal representatives. Few exceptions allow disclosure of psychotherapy notes; that most frequently applied is mandatory by the law reporting about cases of violence, abuse or “imminent harm”. In addition, in some cases psychotherapy notes may be disclosed to other healthcare provider, though this requires patient’s consent and authorization. Overall, HIPSS does not provide extra protection measures for information on mental health disease, except for psychotherapy notes.

 
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Is a health care provider permitted to discuss an adult patient’s mental health information with the patient’s parents or other family members?

HIPAA has special regulations on disclosure of personal information to patient’s relatives and representatives. Firstly, degree of disclosure personal information with patient’s relatives depends if a person is patient’s “personal representative” or not. Next, if person is patient’s representative, health care provider has to evaluate if this person can be potentially endangering patient or if his actions may contradict patient’s interests. If person is patient’s representative and his actions do not present threat to patient’s well-being, person can have access to patient’s records, including treatment, results of diagnostic tests and psychotherapy records. However, if the healthcare provider has concern if person that is official representative may be endangering patient’s physical and mental well-being or interrupt in the treatment process (for example, provide drugs or increase patient’s anxiety), healthcare provider may deprive such person to be official representative, and deny in access to information.

Regarding relatives, who are not patient’s representatives, but who want to obtain information from the patient’s record, the most important factor for consideration is degree of participation in patient’s treatment. If relative pays for treatment sessions and provides person with moral support, he can be provided with information about part of the treatment he pays for or involved in. If patient is capable to make his own decisions, sharing information should be agreed with him. Finally, if the relative that requests patient’s records or information about treatment is not official representative and does not participate in the treatment process, healthcare provider may direct this relative to patient’s representative, and share only general information. Overall, degree of disclosure patient’s information with the relatives depends on their juridical relationships with the patient and role of relatives in the treatment process.

Can a minor child’s doctors talk to the child’s parent about the patient’s mental health status and needs?

According to HIPAA regulations, doctors can talk to parents about mental health of their children, the main condition for it is to be children personal representatives. In the majority of situations, parents are official representatives of their children, though healthcare provider may request a proof of this status. If parents are “personal representatives” of their children, they may have access to medical records, including information about testing, diagnosis, treatment course and progress, and prognosis. However, HIPAA rules on parental access to information about mental health of their children base on state laws on this subject, and may vary from state to state. For example, in some states, children have right to consent certain treatments without informing their parents, or in some cases, children may limit access of their parents to medical information. When a parent turns for a healthcare provider, healthcare provider may check child’s agreement on sharing information with a parent and if parent is “personal representative”, prior to sharing information. After reaching the age of majority, children receive the right to their own decision-making about access to their health records, if they are not limited in their decision-making capacity. In case of medical emergency in mental health, as drug overdose, hallucinations or suicidal attempt, doctors have right to inform parents and relatives about the situation in the patient’s best interests, and disclosure information even is relatives are not personal representatives of the minor patient. Under HIPAA rules, doctors usually may talk with parents about their child’s mental health condition, though in some cases this may be limited by the state laws or by the child’s own decision.

Does a parent have a right to receive a copy of psychotherapy notes about a child’s mental health treatment?

As mentioned above, psychotherapy notes specially protected by HIPAA regulations, and parents are cannot request copies of psychotherapy notes of their children. HIPAA has different regulations on the disclosure of information in the medical record (results of diagnostic tests, diagnosis and treatment interventions) and disclosure of psychotherapist’s personal notes on sessions with the patient. Psychotherapist’s personal notes and records should be stored separately from patient’s medical records, as they are considered to be specially protected sensitive information. However, HIPAA provides healthcare providers with a discrepancy to disclose minor patient’s information, if the patient’s best interests drive this, and if the appropriate state law permits this. Although parents are allowed to excess medical records of their child that receives treatment in mental health facility, psychotherapy notes are an exception, and healthcare providers have discrepancy to disclose them only in some cases under the State law.

When does HIPAA allow a doctor to notify an individual’s family, friends, or caregivers that a patient has overdosed, e.g., because of opioid abuse?

According to HIPAA 45 CFR 164.510(b)(1)(i), doctors or other healthcare provides have the right to inform relatives about the case of overdose or other medical emergency, and provide general information about patient’s health condition. This permission is viable upon such conditions as when the patient preserves decision-making capacity and does not object disclosure, family is involved in treatment, or patient is incapacitated or unavailable and doctor considers that informing family serves patient’s best interests, or informing relatives may assist in treatment or prevent threat to health and life. However, in case of incapacitation of unavailability, after restoration of consciousness and critical thinking patient may ask for cessation of disclosure his personal information.

In case of patient’s death of drug overdose or associated reasons, healthcare provider has the right to inform family or other concerned persons about the reasons, if this does not contradict previously expressed will. Finally, when patient’s actions present obvious threat to his own health, doctors have the right to disclose information to the concerned relatives and friends, if such disclosure may help to prevent negative consequences for patient’s health.

 

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