The Integration of Behavioral Health Notes into the EHR:

Legal and Ethical PerspectivesKenneth Kushner, Ph.D.

Professor, University of Wisconsin Department of Family MedicineNeftali Serrano, Psy.D.

Director, Primary Care Behavioral HealthAccess 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

MedicineCollaborative Family Healthcare Association 14th Annual Conference

October 4-6, 2012 Austin, Texas U.S.A.

Session #C5aOctober 6, 2012

Faculty Disclosure

Please include ONE of the following statements:

We have not had any relevant financial relationships

during the past 12 months.

Objectives

Describe how HIPAA regulations pertain to the inclusion of behavioral health records in EHR’s

Describe how the Wisconsin statutes pertain to the inclusion of behavioral health records in EHR’s

Describe how the American Psychological Association ethics code pertains to the inclusion of behavioral health records in EHR’s

Discuss the potential policy implications of current policies regarding the inclusion of behavioral health records in EHR’s

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.

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

Why this Presentation?

Overview of Presentation

HIPAA

An example of state law Wisconsin statutes and regulations

An example of a professional society American Psychological Association

Disclaimer

We are not lawyers

We suggest you consult your attorneys before making decisions relevant to laws governing your practices

The Health Insurance Portability and Accountability

Act of 1996 (HIPAA)

HIPAA

Part I was enacted in 1996 349 pages

Part II became effective in 2004 419 pages Contains the privacy and security rules

HIPAA

How many people have read HIPAA in its entirety?

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

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”

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 individual’s 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)

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”

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

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

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

HIPAA

HIPAA regulations are superseded by state laws concerning privacy if the state laws are more stringent that HIPAA

Wisconsin State Law

An Exploration of Wisconsin State Code

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.

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 client’s 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.

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.

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….

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. 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.

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.

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”).

APA Ethics Code

Exemplars From Relevant Sections of the APA Code

Section Applicability Comment

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 Consenta.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

Exemplars From Relevant Sections of the APA CodeSection Applicability Comment

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: DisclosuresMay disclose with consent or when permitted by law to obtain appropriate professional consultations

Standard 6: Record Keeping & FeesDocumentation 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."

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?

Policy Implications

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.

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)

.

Q & A

Session Evaluation

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