Policy Academy on Cross Boundary Corrections Information Exchange Washington, DC June 17, 2014

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2 Privacy Issues for Justice and Health Exchanges: Separating Fact from Fiction Kate Tipping, JD Public Health Advisor, Health Information Technology Center for Substance Abuse Treatment Substance Abuse and Mental Health Services Administration Policy Academy on Cross Boundary Corrections Information Exchange Washington, DC June 17, 2014

3 SAMHSA s Criminal Justice Efforts To better address the needs of persons with mental and substance use disorders in the criminal justice system. 3 3

4 CJ Behavioral Health is Public Health MH/SUDs CJI Public Health & Safety MH/SUDs and CJ involvement (CJI) are interlinked public health & safety issues. Addressing MH/SUDs can reduce CJI, simultaneously improving public health and safety while reducing related economic burdens. 4

5 Criminal Justice System continues to be the Largest Referral to Substance Abuse Treatment Other Health Care Provider, 6.4% Alcohol Drug Abuse Care Provider, 9.9% School (Educational), 1.2% Individual (inc. self-referral), 33.1% Employer/EAP, 0.5% Other Community Referral, 12.1% Court/ Criminal Justice Referral/DUI/ DWI, 36.9% Other recognized legal entity, or other Other DUI/DWI Prison, 2.4% Diversionary program, 2.5% Probation/ Parole State/Fed Court, Other Court Recognized Legal Entity 20.6% 10.8% 34.6% 29.2% SAMHSA Treatment Data Set (TEDS) Concatenated,

6 CJ Referrals Make a Difference in Treatment Completion According to SAMHSA TEDs data, CJ referral to treatment was consistently one of the strongest predictors of treatment completion or transfer to further treatment. Secondary statistical analysis of data from a clinical study found that individuals entering court ordered treatment were over 10Xs more likely to complete treatment compared to offenders who entered treatment voluntarily. SAMHSA, OAS, TEDS data (4/25/12); and Coviello, DM et al Does mandating offenders to treatment improve completion rates? J Substance Abuse Treatment. 44:

7 SAMHSA s Strategic Initiative - Health IT Goal: Widespread Implementation of HIT Systems that Support Quality Integrated Behavioral Health Care for All Americans Ensure that behavioral health provider networks fully participate in the adoption of Health IT Support the behavioral health aspects of HIT based on the standards and systems promoted by the Office of the National Coordinator for Health IT Support linkage with systems relevant to behavioral health that support prevention, treatment, wellness and recovery (Criminal justice, HUD, education, public health, recovery oriented systems of care, and other human services) 7

8 Importance of Criminal Justice Behavioral Health Information Sharing Identifying target population for intervention Providing better clinical care Risk assessment Assessing outcomes Program evaluation Coordinating services for re-entry Payment and billing 8

9 Privacy Regulations

10 Confidentiality and Trust In order to achieve any level of systemic durability and success, HIT must be trustworthy and developers and managers must warrant & sustain trusting relationships with all participants, especially the public consumer. Privacy is not an area for compromise Confidentiality should never be a shortcut Security should not be a second thought or an afterthought 10

11 Privacy Regulations Not meant to prevent information sharing but to set the standards for how to share Federal laws are a baseline, states may adopt more strict regulations Most states have laws that are stricter than HIPPA, few have laws that are stricter than Part 2 State laws vary widely, presenting challenges for developing unified policy solutions or solutions that work across states, also difficult for technology vendors to develop functionality 11

12 Why Confidentiality? Reduce negative attitudes Fostering trust Preserving privacy Encouraging help-seeking behavior It is an important, but not absolute, legal and ethical principle Balance between a patients legitimate desire to maintain privacy of sensitive information and permitting sharing of information that will improve treatment or public health or safety 12

13 Critical Privacy Questions Federal and state regulations provide the ground rules. Careful analysis determines how the rules are applied to ensure effective treatment of substance use and mental health disorders. Who needs what information when? Who determines who needs what Information when? How should psychotherapy notes and other ultrasensitive information be treated? How should HIT systems be designed to allow patients to control disclosure and re-disclosure of sensitive information 13

14 42 CFR Part 2 The purpose of the statute and regulations prohibiting disclosure of records relating to substance abuse treatment, except with the patient's consent or a court order after good cause is shown, is to encourage patients to seek substance abuse treatment without fear that by doing so their privacy will be compromised. Source: State of Florida Center for Drug-Free Living, Inc.,842 So.2d 177 (2003) at

15 42 CFR Part 2 Applies to: Federally funded individual or entity that holds itself out as providing, and provides, alcohol or drug abuse diagnosis, treatment or treatment referral Unit within a general medical facility that holds itself out as providing diagnosis, treatment or treatment referral 15

16 42 CFR Part 2 Patient consent must be obtained before sharing information from a substance abuse treatment facility that is subject to 42 CFR Part 2 Disclosure: A communication of patient identifying information, the affirmative verification of another person s communication of patient identifying information, or the communication of any information from the record of a patient (42 CFR 2.11) Even acknowledging that an individual is (or was) a patient at a Part 2 facility is a breach of the regulations Source: 42 CFR Part 2 16

17 Revocation of Consent The written consent must state that it is revocable upon the passage of a specified amount of time or the occurrence of a specified, ascertainable event. The time or occurrence upon which consent becomes revocable may be no later than the final disposition of the conditional release or other action in connection with which consent is given. Source: 42 CFR Part 2 17

18 Restrictions on Redisclosure and Use A person who receives patient information under this section may redisclose and use it only to carry out that person s conditional release or other action in connection with which the consent was given. Source: 42 CFR Part 2 18

19 42 CFR Part 2 Limited exceptions for disclosure without consent : Medical emergencies Child abuse reporting Crimes on program premises or against program personnel Communications with a qualified service organization of information needed by the organization to provide services to the program Public Health research Court order Audits and evaluations Source: 42 CFR Part 2 19

20 42 CFR Part 2 FAQs To help providers in the behavioral health field better understand privacy issues related to Health IT, SAMHSA, in collaboration with ONC has created two sets of Frequently Asked Questions (FAQs). These FAQs can be accessed at: and AQII_Revised.pdf 20

21 42 CFR Part 2 Public Listening Session SAMHSA held a Public Listening Session on Wednesday, June 11, 2014 to solicit information concerning potential changes to the Confidentiality of Alcohol and Drug Abuse Patient Records Regulations, 42 CFR Part 2. Federal Register Notice of Meeting: 21

22 Written Comments Due: June 25, 2014 You may submit comments using any of the following methods: Mail: The Substance Abuse and Mental Health Services Administration, 1 Choke Cherry Road, Rockville, MD 20857, Room Hand Delivery or Courier: 1 Choke Cherry Road, Rockville, MD 20857, Room between 9 a.m. and 5 p.m., ET, Monday through Friday, except federal holidays. PrivacyRegulations@SAMHSA.hhs.gov. Fax:

23 State Laws State laws often provide additional protections for HIV infection, mental health information, genetics, drug and alcohol abuse, minors, domestic violence. Mental health records are treated as ultra-sensitive in many jurisdictions. Each state approaches the confidentiality of mental health records from their own perspective EHR systems have to recognize this variability in state statutes and regulations. 23

24 Privacy Regulation and Criminal Justice

25 Permitted Disclosure (42 CFR Part 2) Generally cannot disclose information without subpoena and court order - arrest/search warrant not sufficient Can disclose for crime committed by patients on program premises or against program personnel or a threat to commit such a crime Addiction treatment records may not be used to initiate/substantiate criminal charges (42 CFR 2.1) but can be used for revocations 25

26 Permitted Disclosure (42 CFR Part 2) Disclosures by a treatment entity providing services to a court-ordered patient (post-adjudication, 42 CFR 2.35) Diagnosis made solely for the purpose of providing evidence for use by law enforcement authorities If facility is not identified publicly as only an alcohol or drug abuse facility, patient s presence may be acknowledged if do not reveal alcohol or drug abuse (42 CFR 2.13) 26

27 Permitted Disclosure (42 CFR Part 2) A program may disclose information about a patient to those persons within the criminal justice system which have made participation in the program a condition of the disposition of any criminal proceedings against the patient or of parole or other release from custody if Disclosure only to those who need the information for monitoring/supervision Written consent of the patient (but revocation rule does not apply) 27

28 Myths

29 Myth 1 Myth: All disclosures require consent Fact: HIPAA does not require consent for disclosures or uses that are necessary to carry out treatment, payment, or health care operations However: 42 CFR Part 2 does require consent unless one of the limited exceptions apply 29

30 Myth 2 Myth: No one outside the health system can access protected health information Fact: HIPAA permits disclosures for : Public health activities Victim of abuse or neglect Judicial/Administrative proceedings Law enforcement Threats to health or safety Court-ordered examinations Correctional facilities Through business agreements 30

31 Myth 2 (Cont.) Myth: No one outside the health system can access protected health information Fact: 42 CFR Part 2 permits disclosures Public health research Child abuse reporting Crimes on premises or against staff Criminal justice system if treatment is made a condition of parole or release Or to other systems with patient consent or QSOA 31

32 Myth 3 Myth: Federal law prohibits staff from the same agency or organization from talking to each other Fact: Both HIPAA and 42 CFR Part 2 permit intraagency exchanges of information 32

33 Questions and Comments Contact: