HIPAA and the New Helping Families in Mental Health Crisis Act

The Helping Families in Mental Health Crisis Act (H.R. 2646) of December, 2013, has been reintroduced by Tim Murphy (R-PA) – Subcommittee Chairman for the House Energy & Commerce Oversight and Investigations – and Rep. Eddie Bernice Johnson (D-TX) with a double purpose. First, it is hoped that the new bill will help to improve the standard of mental health care provided to patients, and secondly a number of new provisions will be introduced to ensure patient privacy is protected.

According to Tim Murphy, the new bill “marks a new dawn for mental health care in America,” he went on to say that the new bill “breaks down federal barriers to care, clarifies privacy standards for families and caregivers; reforms outdated programs, expands parity accountability, and invests in services for the most difficult to treat cases while driving evidence-based care.”

The bill has been praised by many, but the legislation change has not been universally welcomed. The bill has received criticism from some quarters; in particular for the potential for HIPAA violations to occur.

One area of concern is that mental health records do not only contain data about the patient. Information relating to family members is often included in patient notes. By making mental health data more easily accessible to doctors – and care providers – it could all too easily result in the privacy of family members being violated.

Current Legislation Needed to be Changed

The current healthcare environment treats mental health issues separately from physical health problems. The system is seen as inadequate in its current form, with mental health issues not being covered by the same protections as physical illnesses. Murphy said that the current environment consists of “a chaotic patchwork of antiquated programs and ineffective policies across numerous agencies.” That point of view came after Murphy led a year-long investigation into the legislative protections surrounding mental health issues in the run up to the release of the bill in 2013.

The new bill introduces controls to ensure that sufferers of mental health issues can have their caregivers treated as their personal representatives, and allows PHI to be disclosed under specific of circumstances.

Under the new rules introduced with H.R 2646, Protected Health Information (PHI) of mental health patients can be disclosed; provided that:

  1. The disclosure of PHI is required for the treatment or diagnosis of a patient, for scheduling appointments, providing medication and/or issuing medication instructions.
  2. The disclosure of PHI will help with the control of a disease or condition, and benefit either the patient or the public.
  3. If an individual has a co-occurring acute or chronic medical illness, information can be disclosed for the purposes of benefiting the individual by providing medication or other treatments.
  4. The failure to provide PHI could conceivably result in the worsening of a condition suffered by the patient
  5. Disclosure is necessary for continuity of care
  6. PHI can be disclosed to authorized if an individual suffers a severe mental illness which affects his or her ability to follow a treatment plan or who may become “gravely disabled in the absence of treatment”.

All of the above criteria must be satisfied before any PHI can be disclosed and the disclosure does not extend to private and personal psychotherapy notes – which could contain information on family members.

Author: Steve Alder has many years of experience as a journalist, and comes from a background in market research. He is a specialist on legal and regulatory affairs, and has several years of experience writing about HIPAA. Steve holds a B.Sc. from the University of Liverpool.