A bill to reform the nation's behavioral healthcare delivery system seeks to weaken a law that protects the medical records of millions of drug and alcohol abuse patients.
Sen. Bill Cassidy, (R-La.) a physician, and Sen. Chris Murphy, (D. Conn.), a lawyer, introduced their Mental Health Reform Act of 2015 this month.
The bill proposes integrating physical and mental health services, focusing on treatment and early intervention and identifying and funding new, more effective care models.
Language on just two pages of the 107-page bill suggests the government relax, or “streamline” the patient consent requirements of 42 CFR Part 2, the privacy law covering thousands of federally funded drug and alcohol abuse treatment facilities.
Because of comorbidities and conflation of legal liability, the same law protects the records of millions more mental health patients as well.
Under 42 CFR Part 2, providers of drug and alcohol abuse treatment are obliged to obtain a patient's prior consent before disclosing that patient's medical records, including to another, general healthcare provider. The requirement to obtain a patient's prior consent stays with the record and must be met each time the record is moved.
In an attempt to facilitate record sharing between behavioral health and general health providers, the Senate bill seeks to permit a patient covered by 42 CFR Part 2 to give his consent once, on paper or electronically.
That consent would last for a full year unless withdrawn by the patient. It would authorize the disclosure of patients' records to all healthcare providers within an accountable care organization, health home, other integrated-care arrangement or, more broadly, a health information exchange.
Efforts are underway to address interoperability and the privacy protections of 42 CFR using technology and either administrative guidance or rule-making.
For example, the Substance Abuse and Mental Health Services Administration at HHS hosted a daylong “listening session” last summer on the law and is contemplating issuing a rule or informal guidance to facilitate the interoperability of behavioral health information within its constraints.
“It can be subpoenaed by lawyers for divorce and child custody cases,” said Chicago-area lawyer Renee Popovits, principal attorney with Popovits & Robinson. She prefers that a court order be required, as is the case under 42 CFR Part 2.
Mental Health America, a not-for-profit behavioral health advocacy group, has not yet endorsed the Cassidy-Murphy bill, but supports some of its provisions. The organization advocates a full repeal of 42 CFR Part 2, not the partial relaxation the bill provides.
“Our position is you can't treat a whole person with a partial record,” CEO Paul Gionfriddo said.
He added that laws have changed since the 1970s, including passage of the Americans with Disabilities Act, which prohibits discrimination in employment and housing, and the Health Insurance Portability and Accountability Act, which covers health information.
“We protect people's rights in ways we didn't in 1970s,” he said, while adding that his organization advocates for more shared information.
Popovits, co-chairwoman of the substance abuse legal work group of the Illinois Office of Health Information Technology, said the consent provision of the bill takes but doesn't give enough.
“I firmly believe that we do have to balance the exchange of information with some enhanced patient protections,” Popovits said. “If you relax certain standards on consent, you have to have the additional protections on the other side.”
Popovits said she would favor increasing the penalties for violations of the law, which max out at $5,000 per violation, to match those of HIPAA, which include monetary penalties up to $50,000 per violation and prison time up to 10 years for the worst violations. But Popovits said the entire law needs an upgrade, not “just a minor little fix.”
For example, if a drug or alcohol abuse patient visits an emergency room, the attending physician may access that patient's information without the patient's consent under a “break the glass” provision of the law. “Once that information is shared in a medical emergency, it has zero protection,” she said. “It becomes part of the medical record” and subject only to HIPAA.
“It can be subpoenaed by lawyers for divorce and child custody cases,” Popovits said. She prefers that a court order be required, as is the case under 42 CFR Part 2.
Dr. Scott Monteith, a psychiatrist in Traverse City, Mich., who has worked at its local community health center for more than 20 years, said the law's protections are as needed today as they were 40 years ago.
“As much as we want to pretend stigma doesn't exist, or you deny it, the original raison d'etre is still there, no question about it,” Monteith said. “When you look at a lot of big shots, who are familiar with power and consequences, if they see a mental health person, they insist that you keep it confidential. I can tell you they pay cash or (insist) records cannot be kept.”
As a clinician, Monteith said he is “appreciative of the plight” of his peers who want access to all available medical information on their patients. Behavioral health patients need to be counseled on the benefits and risks of health information exchange, but at the least, obtaining their consent should be society's default position, he said.
“Privacy is embodied in the Hippocratic Oath,” Monteith said. “Privacy is essential to trust and the best definition of privacy is patient control.”
