Ethics, Confidentiality, and Ethics, Confidentiality, and HIPAA!HIPAA!

DisclaimerDisclaimer

It is incumbent on all professionals to know It is incumbent on all professionals to know their own ethical standards and the laws their own ethical standards and the laws under which they practice. This under which they practice. This presentation does not provide legal presentation does not provide legal advice. See your attorney for legal advice. advice. See your attorney for legal advice.

Confidentiality and EthicsConfidentiality and Ethics

FundamentalsFundamentals

ConsentsConsents

Beyond ConsentsBeyond Consents

Rules, Ethics, and the Implications for the Rules, Ethics, and the Implications for the Drug Court teamDrug Court team

Confidentiality and EthicsConfidentiality and Ethics

Introduction and Introduction and FundamentalsFundamentals

Confidentiality/PrivacyConfidentiality/Privacy

Several rules apply to participants in Drug Several rules apply to participants in Drug treatment courts. treatment courts.

42 CFR Part 2 – The alcohol and substance 42 CFR Part 2 – The alcohol and substance abuse treatment confidentiality rule.abuse treatment confidentiality rule.

HIPAA – New federal rules covering all health HIPAA – New federal rules covering all health related information.related information.

42 U.S. Code 290dd42 U.S. Code 290dd42 CFR Part 242 CFR Part 2

First issued 1975, revised 1987First issued 1975, revised 1987

Designed to help deal with the stigma of Designed to help deal with the stigma of addiction.addiction.

Requires notification of confidentiality, Requires notification of confidentiality, consent forms, prohibition of redisclosureconsent forms, prohibition of redisclosure

““I’m sorry I cannot acknowledge whether I’m sorry I cannot acknowledge whether someone is or isn’t in our treatment someone is or isn’t in our treatment program”.program”.

What 42 CFR Covers:What 42 CFR Covers:

““Any program or activity relating to Any program or activity relating to substance abuse education, prevention, substance abuse education, prevention, training, treatment, rehabilitation or training, treatment, rehabilitation or research which is directly or indirectly research which is directly or indirectly assisted by any department or agency of assisted by any department or agency of the United States.”the United States.”

HIPAAHIPAA

HHealth ealth IInsurance nsurance PPortability and ortability and AAccountability ccountability AAct of 1996ct of 1996Designed to ensure maintenance of health Designed to ensure maintenance of health insurance coverage when you change jobs.insurance coverage when you change jobs.Administrative simplification – Healthcare Administrative simplification – Healthcare processes becoming very complex – look to processes becoming very complex – look to standardize information – make it easier.standardize information – make it easier.Protect confidentiality and security of patient Protect confidentiality and security of patient informationinformation

Is your Drug Court a HIPAA Is your Drug Court a HIPAA Covered Entity?Covered Entity?

http://www.cms.hhs.gov/hipaa/hipaa2/suphttp://www.cms.hhs.gov/hipaa/hipaa2/support/tools/decisionsupport/default.aspport/tools/decisionsupport/default.asp

HIPAA v. 42 CFR Part 2HIPAA v. 42 CFR Part 2

The laws cover a lot of the same material.The laws cover a lot of the same material.

Some points of difference – more specific Some points of difference – more specific or more recent rule usually applies.or more recent rule usually applies.

For the CD Treatment providers, in most For the CD Treatment providers, in most cases the rules of 42 CFR Part 2 are more cases the rules of 42 CFR Part 2 are more stringent stringent

In several cases HIPAA wins.In several cases HIPAA wins.

Do These Laws Apply to Drug Do These Laws Apply to Drug Court Practitioners?Court Practitioners?

How Do We Know They Apply?How Do We Know They Apply?

Is the Drug Court Program a Is the Drug Court Program a Treatment Program for the Treatment Program for the

Purposes of the Confidentiality Purposes of the Confidentiality Regulations and Why?Regulations and Why?

General Rule of DisclosureGeneral Rule of Disclosure

““Treatment Programs may only release Treatment Programs may only release information or records that will directly or information or records that will directly or indirectly identify a drug court participant indirectly identify a drug court participant as a substance abuser or treatment as a substance abuser or treatment patient:patient:– With a knowing and written consent from the With a knowing and written consent from the

participant, ANDparticipant, AND– Nine limited exceptionsNine limited exceptions

Criminal Justice ReferralsCriminal Justice ReferralsSection 2.35Section 2.35

A program may disclose information about A program may disclose information about a patient to those persons within the a patient to those persons within the criminal justice system which have made criminal justice system which have made participation in the program a condition of participation in the program a condition of the disposition of any criminal proceeding the disposition of any criminal proceeding against the patient or of the patient’s against the patient or of the patient’s parole or other release from custody if:parole or other release from custody if:

Criminal Justice ReferralsCriminal Justice Referrals

The disclosure is made only to those The disclosure is made only to those individuals within the criminal justice individuals within the criminal justice system who have a need for the system who have a need for the information in connection with their duty to information in connection with their duty to monitor the patient’s progress (e.g., a monitor the patient’s progress (e.g., a prosecuting attorney who is withholding prosecuting attorney who is withholding charges…, a court granting pretrial charges…, a court granting pretrial release, probation or parole officers…) release, probation or parole officers…) andand

Criminal Justice ReferralsCriminal Justice Referrals

The patient has signed a written consent The patient has signed a written consent meeting the requirements of section 2.31…meeting the requirements of section 2.31…

Restrictions on redisclosure and useRestrictions on redisclosure and use. A person . A person who receives patient information under this who receives patient information under this section may redisclose and use it only to carry section may redisclose and use it only to carry out that person’s out that person’s official dutiesofficial duties with regard to the with regard to the patient’s conditional release or other action in patient’s conditional release or other action in connection with which the consent was given.connection with which the consent was given.

ConsentsConsents

How can a patient in AOD How can a patient in AOD treatment consent to release treatment consent to release

information?information?

How do You Obtain Written How do You Obtain Written Consent from Your Consent from Your

Participants?Participants?

Elements of a ConsentElements of a Consent

1.1. Name of person or organization that may make the Name of person or organization that may make the disclosure;disclosure;

2.2. Name or title of person (or organization) to whom Name or title of person (or organization) to whom disclosure may be made;disclosure may be made;

3.3. Participant’s name;Participant’s name;4.4. Purpose of the disclosure;Purpose of the disclosure;5.5. How much and what kind of information may be How much and what kind of information may be

disclosed;disclosed;6.6. Participant’s signature;Participant’s signature;7.7. Date on which the consent was signed;Date on which the consent was signed;8.8. Date, event, or condition upon which the consent will Date, event, or condition upon which the consent will

expireexpire(Consent cannot be revoked unless in the juvenile or family court setting)(Consent cannot be revoked unless in the juvenile or family court setting)

ConsentsConsents

A proper consent can authorize all parties A proper consent can authorize all parties involved in the drug court to share information involved in the drug court to share information necessary to monitor treatment progress and necessary to monitor treatment progress and compliance. compliance.

To be effective the consent form should be To be effective the consent form should be signed at the earliest possible time. signed at the earliest possible time.

Judge, coordinator, probation, etc., should get Judge, coordinator, probation, etc., should get consent and fax it to treatment before 1consent and fax it to treatment before 1stst appointment.appointment.

Requiring ConsentsRequiring Consents

HIPAA prohibits a program from HIPAA prohibits a program from conditioning treatment on a patient signing conditioning treatment on a patient signing a consent, a consent, butbut

The judge, probation/parole, child welfare The judge, probation/parole, child welfare can condition participation in the drug can condition participation in the drug court program on the defendant signing court program on the defendant signing the consent form. the consent form.

Satisfying 42 CFR and HIPAASatisfying 42 CFR and HIPAA

HIPAA requires all consents to be HIPAA requires all consents to be revocable, butrevocable, but

HIPAA also allows for the use of an HIPAA also allows for the use of an administrative order for information administrative order for information disclosure. Therefore, disclosure. Therefore,

Drug courts can pair their 42 CFR consent Drug courts can pair their 42 CFR consent with a HIPAA administrative order and/or with a HIPAA administrative order and/or build HIPAA language into their consentbuild HIPAA language into their consent

Does the Way That You Obtain Does the Way That You Obtain Consent Vary if You are Dealing Consent Vary if You are Dealing

with Minors?with Minors?

Beyond ConsentsBeyond Consents

Are there other circumstances Are there other circumstances in which information may be in which information may be

shared? shared?

Even without written consent, Even without written consent, under what other circumstances under what other circumstances may information be released?may information be released?

Permitted disclosures -no consentPermitted disclosures -no consent

Medical emergencyMedical emergency

Crimes on the premisesCrimes on the premises

Crimes against staffCrimes against staff

Administration / qualified service programs Administration / qualified service programs working with drug courtworking with drug court

Outside auditors, central registries and Outside auditors, central registries and researchers researchers

No re-disclosures unless permittedNo re-disclosures unless permitted

Mandatory disclosure -no Mandatory disclosure -no consentconsent

State child abuse lawsState child abuse lawsA valid court order A valid court order State laws relating to cause of deathState laws relating to cause of deathDuty to protect others, to warn of Duty to protect others, to warn of imminent, serious harmimminent, serious harm

PracticePractice

How do these rules impact How do these rules impact every day functions of my every day functions of my

drug court?drug court?

What if your court clerk answers What if your court clerk answers the telephone, “Good morning. the telephone, “Good morning.

Drug Court.”Drug Court.”Is this a violation of the Is this a violation of the

confidentiality laws?confidentiality laws?

HypotheticalHypothetical

Joe and Mary are in your drug court. They have Joe and Mary are in your drug court. They have different primary counselors at different different primary counselors at different agencies. At a pre-staffing meeting of treatment agencies. At a pre-staffing meeting of treatment providers, the counselors share the following providers, the counselors share the following information: Mary’s counselor reports that Mary information: Mary’s counselor reports that Mary is thrilled because she and Joe are going to try is thrilled because she and Joe are going to try to have a baby. Joe’s counselor reports that Joe to have a baby. Joe’s counselor reports that Joe is excited that she and Mary are trying to have a is excited that she and Mary are trying to have a baby, but that although they’ve begun having baby, but that although they’ve begun having unprotected sex, he’s unwilling to share with unprotected sex, he’s unwilling to share with Mary that he’s HIV positive.Mary that he’s HIV positive.

HypotheticalHypothetical

What ethical issues are presented?What ethical issues are presented?

What confidentiality issues are presented?What confidentiality issues are presented?

What difference, if any, would it make if What difference, if any, would it make if the whole team had been given this the whole team had been given this information?information?

What difference, if any, would it make if What difference, if any, would it make if Mary or Joe were underage?Mary or Joe were underage?

Case LawCase Law

Florida Case involving drug courtFlorida Case involving drug court

United States v. White, 902 F. Supp. 1347 (D. Kansas 1995)– Reading of law would be too broad if

subjected judges and court officials to criminal sanctions if mentioned involvement of defendant in AOD treatment

General EthicsGeneral Ethics

Everyone on the drug court team has both Everyone on the drug court team has both personal and professional ethical personal and professional ethical standardsstandards– At times, these can conflictAt times, these can conflict– Word most associated with ethics: dilemmaWord most associated with ethics: dilemma– The “rules” can change, or be different in The “rules” can change, or be different in

different jurisdictionsdifferent jurisdictions– TarasoffTarasoff ruling ruling– Seek advice of state experts on ethical Seek advice of state experts on ethical

dilemmasdilemmas

Ethical IssuesEthical Issues

Treatment ProvidersTreatment Providers– Consent is permissive, not mandatoryConsent is permissive, not mandatory– Information released must be what is Information released must be what is

minimally necessary to meet the terms and minimally necessary to meet the terms and conditions of the consentconditions of the consent

– Every staffing is a potential ethical dilemmaEvery staffing is a potential ethical dilemma– What to do with information about illegal What to do with information about illegal

activity? Sexual abuse? Personal health activity? Sexual abuse? Personal health issues?issues?

Defense AttorneysDefense Attorneys

Unlike Treatment Providers, no federal Unlike Treatment Providers, no federal statute has provided Defense Attorneys statute has provided Defense Attorneys with a consent to set aside attorney-client with a consent to set aside attorney-client privilegeprivilege

Participation in staffing could be similar to Participation in staffing could be similar to a Treatment Provider with a consent a Treatment Provider with a consent allowing only the release of information allowing only the release of information verifying client is in treatmentverifying client is in treatment

ProsecutorsProsecutors

Duty to protect public safetyDuty to protect public safety

Proverbial “rock and a hard place” if Proverbial “rock and a hard place” if confronted with information they should confronted with information they should act on ethically, but cannot act on legallyact on ethically, but cannot act on legally

JudgesJudges

Cannot outsource their decision to another Cannot outsource their decision to another person or group of persons—must be the person or group of persons—must be the final decision makerfinal decision maker

Cannot raise moneyCannot raise money

General IssuesGeneral Issues

For everyone on the team, it’s necessary For everyone on the team, it’s necessary to maintain a professional relationship with to maintain a professional relationship with the drug court professionalsthe drug court professionals– Don’t lend moneyDon’t lend money– Don’t co-sign loansDon’t co-sign loans– Don’t develop intimate relationshipsDon’t develop intimate relationships

ResourcesResources

Confidentiality and Communication: A Confidentiality and Communication: A Guide to the Federal Drug and Alcohol Guide to the Federal Drug and Alcohol Confidentiality Law and HIPAA (Legal Confidentiality Law and HIPAA (Legal Action Center)Action Center)