The Integration of Behavioral Health Notes into the EHR: Legal
and Ethical Perspectives Kenneth Kushner, Ph.D. Professor,
University of Wisconsin Department of Family Medicine Neftali
Serrano, Psy.D. Director, Primary Care Behavioral Health Access
Community Health Centers Clinical Assistant Professor, University
of Wisconsin Department of Family Medicine Mark Marnocha,Ph.D.
Associate Professor, University of Wisconsin Department of Family
Medicine Collaborative Family Healthcare Association 14 th Annual
Conference October 4-6, 2012 Austin, Texas U.S.A. Session # C5a
October 6, 2012 Slide 2 Faculty Disclosure Please include ONE of
the following statements: We have not had any relevant financial
relationships during the past 12 months. Slide 3 Objectives
Describe how HIPAA regulations pertain to the inclusion of
behavioral health records in EHRs Describe how the Wisconsin
statutes pertain to the inclusion of behavioral health records in
EHRs Describe how the American Psychological Association ethics
code pertains to the inclusion of behavioral health records in EHRs
Discuss the potential policy implications of current policies
regarding the inclusion of behavioral health records in EHRs Slide
4 Learning Assessment A learning assessment is required for CE
credit. Attention Presenters: Please incorporate audience
interaction through a brief Question & Answer period during or
at the conclusion of your presentation. This component MUST be done
in lieu of a written pre- or post-test based on your learning
objectives to satisfy accreditation requirements. Slide 5 Why this
Presentation? Though it comes as a surprise to some, BHC
consultation notes are primary care records and should not be
treated any differently from other primary care notes. Robinson and
Reiter, Behavioral Consultation and Primary Care: A Guide to
Integrating Services Slide 6 Why this Presentation? Slide 7
Overview of Presentation HIPAA An example of state law Wisconsin
statutes and regulations An example of a professional society
American Psychological Association Slide 8 Disclaimer We are not
lawyers We suggest you consult your attorneys before making
decisions relevant to laws governing your practices Slide 9 The
Health Insurance Portability and Accountability Act of 1996 (HIPAA)
Slide 10 HIPAA Part I was enacted in 1996 349 pages Part II became
effective in 2004 419 pages Contains the privacy and security rules
Slide 11 Slide 12 HIPAA How many people have read HIPAA in its
entirety? Slide 13 HIPAA Pertains only to electronic medical
records Does not make a distinction between behavioral health and
mental health information Mental health is barely mentioned in Part
1 other than to state that mental health information is considered
health information Slide 14 HIPAA Part II makes no restrictions
regarding the release of mental health information per se Nor does
it make a distinction between information provided by physicians
versus other health professionals, eg psychologists It does make a
distinction regarding psychotherapy notes Slide 15 HIPAA Defines
psychotherapy notes as: notes recorded (in any medium) by a health
care provider who is a mental health professional documenting or
analyzing the contents of conversation during a private counseling
session or a group, joint, or family counseling session and that
are separated from the rest of the individuals medical record.
Psychotherapy notes excludes medication prescription and
monitoring, counseling session start and stop times, the modalities
and frequencies of treatment furnished, results of clinical tests,
and any summary of the following items: Diagnosis, functional
status, the treatment plan, symptoms, prognosis, and progress to
date. (Part II, p. 82805) Slide 16 HIPAA In the commentary to part
II, psychotherapy notes are clearly defined as process notes, as
opposed to progress notes These are kept separate from the rest of
the medical records Separate and specific consent is required to
release psychotherapy notes, but not progress notes Slide 17 HIPAA
Consent is required to disclose information to carry out treatment,
payment, or health operations There are exceptions for emergencies
With the exception of psychotherapy notes there are no special
requirements for mental health information or for mental health
professionals Slide 18 HIPAA The minimum necessary standard (in
164.502 ): b) Standard: Minimum necessary. (1) Minimum necessary
applies. When using or disclosing protected health information or
when requesting protected health information from another covered
entity, a covered entity must make reasonable efforts to limit
protected health information to the minimum necessary to accomplish
the intended purpose of the use, disclosure, or request. (2)
Minimum necessary does not apply. This requirement does not apply
to: (i)Disclosures to or requests by a health care provider for
treatment Slide 19 HIPAA Summary of implications of HIPAA With the
exception of psychotherapy notes, behavioral health information is
treated as being equivalent to other medical information,
regardless of the health professional entering it in the EHR
Because it is for diagnosis and treatment, behavioral health
information may be treated the same as any primary health care
information within a covered entity The same informed consent
procedures for treatment and release of information are required
for behavioral health information as for other primary care
information Slide 20 HIPAA HIPAA regulations are superseded by
state laws concerning privacy if the state laws are more stringent
that HIPAA Slide 21 Wisconsin State Law Slide 22 An Exploration of
Wisconsin State Code Slide 23 Wisconsin Chapter 455: Psychology
Examining Board 455.08 Rules and code of ethics. The examining
board shall adopt such rules as are necessary under this chapter
and shall, by rule, establish a reasonable code of ethics governing
the professional conduct of psychologists, using as its model the
"Ethical Standards of Psychologists", established by the American
Psychological Association. The primary intent of this code shall be
to assure that licensed psychologists limit their practices to
those specialties in the field of psychology which they are
qualified to practice. Every person who holds a license to practice
psychology in this state shall be governed and controlled by such
code of ethics. Cross-Reference: See also Psy and ch Psy 5, Wis.
adm. code. Slide 24 Psy 5.01 Professional (mis) Conduct ( 12)
Revealing facts, data, information, records or communication
received from a client in a professional capacity except in the
following circumstances: (a) With the informed consent of the
client or the clients authorized representative. (b) With prior
notification to the client at the time the information was elicited
of the use and distribution of the information. (c) If necessary to
prevent injury to the client or another person. d) Pursuant to the
lawful order of a court of law. (e) Use of case history material
for teaching or research purpose, or in textbooks or other
literature, provided that proper precautions are taken to conceal
the identity of the client. ( f) Where otherwise permitted or
required under ss. 51.30 and 146.82, Stats. (g) When required by
federal or state law. Slide 25 ss 51.30 Definition of Informed
Consent (for State Mental Health Facilities) (2) Informed consent.
An informed consent for disclosure of information from court or
treatment records to an individual, agency, or organization must be
in writing and must contain the following: the name of the
individual, agency, or organization to which the disclosure is to
be made; the name of the subject individual whose treatment record
is being disclosed; the purpose or need for the disclosure; the
specific type of information to be disclosed; the time period
during which the consent is effective; the date on which the
consent is signed; and the signature of the individual or person
legally authorized to give consent for the individual. Slide 26
146.82(1) Confidentiality of patient health care records
Confidentiality. All patient health care records shall remain
confidential. Patient health care records may be released only to
the persons designated in this section or to other persons with the
informed consent of the patient or of a person authorized by the
patient. However, there is permission for a free exchange of
information. Slide 27 146.82(2) Access without informed consent. (
a) Notwithstanding sub. (1), patient health care records shall be
released upon request without informed consent in the following
circumstances:(1) 1. To health care facility staff committees, or
accreditation or health care services review organizations for the
purposes of conducting management audits, financial audits, program
monitoring and evaluation, health care services reviews or
accreditation. 2. To the extent that performance of their duties
requires access to the records, to a health care provider or any
person acting under the supervision of a health care provider or to
a person licensed under s. 256.15, including medical staff members,
employees or persons serving in training programs or participating
in volunteer programs and affiliated with the health care provider,
if any of the following is applicable: a. The person is rendering
assistance to the patient. b. The person is being consulted
regarding the health of the patient. c. The life or health of the
patient appears to be in danger and the information contained in
the patient health care records may aid the person in rendering
assistance. Slide 28 Implications of Wisconsin Law 5.01(12)f
appears to allow proper Professional Conduct to be guided by
146.82, which supports the unimpeded flow of information pertaining
to patient health care, emergent or otherwise. 146.82(2)a.2 appears
to grant the sort of communication required for integrated
behavioral health-care. 5.01(12)b appears to allow prior
notification to have validity equivalent to informed consent. Slide
29 Hmm It appears that the flow of information adequate for
integrated care (outside the state mental health system) is NOT
professional misconduct, and is expressly permitted by the rules
and statutes cited in 501(12). The APA Code is invoked as a model
for a state code of ethics, though the actual Wisconsin state code
of conduct is largely a listing of exceptions/violations, rather
than general ethical principles and specifics (Chapter Psy 5
CONDUCT). Slide 30 APA Ethics Code Slide 31 Exemplars From Relevant
Sections of the APA Code SectionApplicabilityComment Principle D:
Justice Access to mental health services is scarce, especially for
some populations and PCBH seeks to address this justice issue.
Without seamless communication integrated care models break down.
Important to the discussion is the reality of access barriers to
care - inappropriate information sharing protections becomes one of
them Standard 3.09: Cooperation with Other Professionals Explicit
indication for collaborative work for the patient's benefit.
Implied is the responsibility to collaborate Standard 3.10 Informed
Consent a.Patient's should consent explicitly to receive services.
d. Documentation is necessary. Standard 4.01: Maintaining
confidentiality Reasonable precautions to protect confidential
information Standard 4.02: Discuss limits of confidentiality
Discussion with patients regarding the limits of confidentiality,
foreseeable uses of the information generated through psychological
activities (at the outset) The term "discussion" appears several
times with regard to informed consent and confidentiality. This is
an aspect that needs to be clarified as medicine has differing
standards of consent which do not (cannot) involve verbal
discussion Slide 32 Exemplars From Relevant Sections of the APA
Code SectionApplicabilityComment Standard 4.04: Minimizing
intrusions on privacy Discussion in consultations of only germane
information for the purpose of communication and only with persons
clearly concerned with such matters Principle of restricting nature
of information to "need to know". Lends itself to the need for
appropriate documentation and use of language. Standard 4.05:
Disclosures May disclose with consent or when permitted by law to
obtain appropriate professional consultations Standard 6: Record
Keeping & Fees Documentation necessary for continuity of care
(but related to "later" care) The importance of record keeping is
introduced with continuity of care alluded to, but mostly with the
implication of transfer of records to another MH professional who
will take over care Standard 6.02b: Maintenance, dissemination, and
disposal of confidential records of professional and scientific
work Information entered into databases and record systems need to
be protected. This seems to apply to research but may apply to EHR.
The masked PI is clearly unreasonable for a medical environment.
Standard 10: Therapy (.01) Requirements for informed consent
including nature, course of therapy, fees, involvement of third
parties, and provide opportunity for discussion The specific
content of informed consent is discussed, again with provision for
"discussion." Slide 33 Implications of APA Ethics Code There is no
section labeled Exactly how to behave ethically in an integrated
primary care environment. The ethics code does not preclude
integrated care, but was clearly not written with an integrated
environment in mind. The ethics code is clearly oriented to
protection of the individual. Another ethical perspective, oriented
to population-based care, is the protection of large groups of
people (justice). Furthermore, the "consultant" role of the
Behavioral Health Consultants falls outside of the scope of the
ethics code in that a formal treatment relationship is not
established. The consultant works to enhance the existing medical
service and not establish an independent service and has
responsibility to both the PCP and patient in that order. A key
question is whether the standard informed consent used in medicine
fulfills the spirit of the ethics code. In lieu of "discussion"
which is often irrelevant and impossible in integrated primary care
behavioral health, is written consent acceptable? Slide 34 Policy
Implications Slide 35 Summary of Policy Implications HIPAA,
Wisconsin state law and the APA ethics code do not preclude the
integration of behavioral health information in EHRs within an
integrated care model, given that proper informed consent is
obtained. However, none of them directly address population-based
models of care. In particular the the APA ethics code needs to
incorporate psychologist roles outside of the independent
practitioner role and reflect the population-based and
consultation-based perspective of integrated care. Nothing in the
APA code currently precludes operating in a seamless fashion within
an existing medical practice with a free flow of verbal and written
information, but too much emphasis is placed on discussion based
informed consent. Current practitioners thus have no ethical limits
but also not much ethical guidance. Applicability of the APA code
will depend on the nature of the integrated care practice. The more
independent and free-standing the practice is/ behaves, the more
applicable the code elements become because of the nature of the
relationship established with the patient and the role of the
practitioner. It may make the most sense to craft this section of
the code in conjunction with a major medical association such as
the AMA or AAFP. Slide 36 Summary of Policy Implications Such
collaboration is especially important since family physicians often
obtain, explore, diagnose, and treat many of the
conditions/content/diagnoses seen in MH settings. So if the
relationship and the depth of sharing are the criteria, then either
primary care notes need higher levels of protection (sometimes) or
else we are health-care generalists alongside our other primary
care professionals. APA needs further alignment with Integrated
Care, Health Psychology and Primary Care treatment models to better
help us in the trenches and our licensing boards to have good
guidelines for risk management and ethical care. What the laws say
is distinct from the accumulation of legal interpretations and
precedents. The EMR has unique risks for all of us. (eg,
unauthorized copying and sale of lists of patients with specific
diagnoses, ABC News, 9/13/2012 ). Slide 37 Q & A Slide 38
Session Evaluation Please complete and return the evaluation form
to the classroom monitor before leaving this session. Thank
you!
