Avoiding Liability Bulletin – June 2013
… The House Energy and Commerce Subcommittee on Oversight and Investigations, chaired by Rep. Tim Murphy of Pennsylvania, has held several hearings on the nation’s mental health system, recently focusing on the Health Insurance Portability and Accountability Act (HIPAA) and how its application can help or hinder patient care and public safety. Members of Congress and others have expressed concern that the HIPAA “Privacy Rule” may interfere with the timely and continuous flow of health information between health care providers, patients, and families, thereby impeding patient care, and in some cases, public safety. These hearings are in large part an outgrowth of the Newtown, Connecticut elementary school shootings.
One of the concerns expressed by one or more members of the Subcommittee was that covered entities (including individual mental health providers) were so concerned about privacy and confidentiality, and so afraid that the federal government may come after them for an alleged violation, that they tended to not share information with others under circumstances where they are in fact allowed to do so – just to act on the cautious side. Connected to this concern was the question of what HIPAA allows with respect to health care providers communicating with family members or other relatives of the patient, close friends, or parents. The testimony around this issue confirmed that HIPAA allows providers to communicate with such interested persons, but only in a limited way and under limited circumstances. Reference to the applicable section of the federal regulations was made – that is, 45 CFR 164.510.
Another concern involved the dangerous patient issue. One of the witnesses who testified at the hearing was Leon Rodriguez, Director of the Office for Civil Rights (OCR) – the enforcement arm of the U.S. Department of Health and Human Services (HHS). Director Rodriguez testified, among other things, that the “Privacy Rule” allows health care providers to warn or alert law enforcement, family members of the patient, or any other persons who may reasonably be able to prevent or lessen the risk of harm when the provider in good faith believes that a warning or report is necessary to prevent threatened harm from the patient. Essentially, the Director stated that HIPAA allows disclosures in dangerous patient situations (danger to self or others), but that providers must act consistent with the requirements or authorizations of state law and the ethical standards of the particular profession. His testimony in this regard was intended to convince the Subcommittee that HIPAA does not impede public safety.
Of the most interest to me was the testimony that indicated that there may be some who believe that the HIPAA regulations do not go far enough when it comes to the dangerous patient scenarios I have often written about. The position expressed was that the HIPAA regulations were permissive only, and were too deferential to state law and applicable professional ethical standards. What therefore remains is a hodge-podge of widely varying state laws that take different positions as to whether or not there is a duty to protect a third party, and whether or not certain disclosures must be made to law enforcement or intended victims or others under circumstances where a patient threatens violence. There appears to be some interest in exploring whether or not it would be appropriate and effective to promulgate a national and uniform standard that would not only allow a psychotherapist to break confidentiality, but would establish a duty to protect third parties (intended victims) when a patient threatens imminent physical violence. I don’t see anything happening in the near future, although the idea is interesting and worthy of debate.
ABOUT THE AUTHOR
"At the Intersection of Law and Psychotherapy"
Richard S. Leslie is an attorney who has practiced at the intersection of law and psychotherapy for the past twenty-five years. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT), where he worked with their various state divisions to develop and implement their legislative agendas. He also provided telephone consultation services to AAMFT members regarding legal and ethical issues confronting practitioners of diverse licensure nationwide. Additionally, he wrote articles regarding legal and ethical issues for their Family Therapy Magazine and presented at workshops on a variety of legal issues.
Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. He was director of Government Relations for CAMFT, and as such was the architect of CAMFT’s widely regarded and successful legislative agenda. He represented CAMFT before the regulatory board (the Board of Behavioral Sciences) and was a tireless advocate for due process and fairness for licensees and applicants. He was a regular presenter at workshops and was consistently evaluated as CAMFT’s most highly rated presenter. He also sat with the CAMFT Ethics Committee and acted as their advisor on matters pertaining to the enforcement of ethical standards.
Richard is an acknowledged expert on matters pertaining to the interrelationship between law and the practice of marriage and family therapy and psychotherapy. For many years, he taught Law and Ethics courses for a number of colleges and universities in their marriage and family therapy degree programs. While at CAMFT, he provided telephone consultation services with thousands of therapists in California and elsewhere for over twenty years. He is highly regarded for his judgment, his expertise, his direct style, and his clarity.
Richard has been the driving force for many of the changes and additions to the laws of the State of California that affect MFTs. In 1980, he was primarily responsible for achieving passage of the "Freedom of Choice Law" that required insurance companies to pay for psychotherapy services performed by MFTs. Passage of that law allowed MFTs to earn a living, allowed them to better compete in the marketplace, and strengthened the profession in California by leading to a great increase in the number of licensees and CAMFT membership. Currently, about half of the licensed marriage and family therapists in the country are licensed in California.
While at CAMFT, Richard was primarily responsible for, among other things, the successful effort to criminalize sex between a patient and a therapist. He was successful in extending the laws of psychotherapist-patient privilege to MFTs, thereby giving patients the same level of privacy protection as when seeing a psychiatrist or psychologist. He fought tirelessly and successfully for the right of MFTs to refer to themselves as "psychotherapists," to perform psychological testing services, to be appropriately reimbursed by California’s Victims of Crime Program, and to be employed in county mental health agencies throughout California.
Richard was admitted to the Bar in New York (1969) and in California (1973). While practicing in New York, he served as a public defender, and later, as an Assistant District Attorney. Shortly after moving to California, he worked for the San Diego County Human Relations Commission as their Law and Justice Officer. While there, he worked successfully to achieve greater racial diversity in the criminal jury selection system and to expose and stop police abuse. For such work with that agency, he was the recipient of the Civil Libertarian of the Year Award by the San Diego Chapter of the American Civil Liberties Union.