Ethics, Confidentiality, and HIPAA!

Ethics, Confidentiality, and HIPAA! 2006 ASAC Drug Court Confidentiality FMJ Multi- County November 8, 2006

Confidentiality/Privacy Several rules apply to participants in Drug treatment courts. 42 CFR Part 2 – The alcohol and substance abuse treatment confidentiality rule. HIPAA – New federal rules covering all health related information.

42 U.S. Code 290dd42 CFR Part 2 • First issued 1975, revised 1987 • Designed to help deal with the stigma of addiction. • Requires notification of confidentiality, consent forms, prohibition of redisclosure • “I’m sorry I cannot acknowledge whether someone is or isn’t in our treatment program”.

What 42 CFR Covers: • “Any program or activity relating to substance abuse education, prevention, training, treatment, rehabilitation or research which is directly or indirectly assisted by any department or agency of the United States.”

HIPAA • Health Insurance Portability and Accountability Act of 1996 • Designed to ensure maintenance of health insurance coverage when you change jobs. • Administrative simplification – Healthcare processes becoming very complex – look to standardize information – make it easier. • Protect confidentiality and security of patient information

Is your Drug Court a HIPAA Covered Entity? • http://www.cms.hhs.gov/hipaa/hipaa2/support/tools/decisionsupport/default.asp

HIPAA vs. 42 CFR Part 2 • The laws cover a lot of the same material. • Some points of difference – more specific or more recent rule usually applies. • For the CD Treatment providers, in most cases the rules of 42 CFR Part 2 are more stringent • In several cases HIPAA wins.

Do These Laws Apply to Drug Court Practitioners?How Do We Know They Apply?

Is the Drug Court Program a Treatment Program for the Purposes of the Confidentiality Regulations and Why?

General Rule of Disclosure • “Treatment Programs may only release information or records that will directly or indirectly identify a drug court participant as a substance abuser or treatment patient: • With a knowing and written consent from the participant, AND • Nine limited exceptions

How do You Obtain Written Consent from Your Participants?

Elements of a Consent • Name of person or organization that may make the disclosure; • Name or title of person (or organization) to whom disclosure may be made; • Participant’s name; • Purpose of the disclosure; • How much and what kind of information may be disclosed; • Participant’s signature; • Date on which the consent was signed; • Date, event, or condition upon which the consent will expire (Consent cannot be revoked unless in the adult terminates Drug Court)

Consents • A proper consent can authorize all parties involved in the drug court to share information necessary to monitor treatment progress and compliance. • To be effective the consent form should be signed at the earliest possible time. • Judge, coordinator, probation, etc., should get consent and fax it to treatment before 1st appointment.

Requiring Consents • HIPAA prohibits a program from conditioning treatment on a patient signing a consent, but • The judge, probation/parole, child welfare can condition participation in the drug court program on the defendant signing the consent form.

Satisfying 42 CFR and HIPAA • HIPAA requires all consents to be revocable, but • HIPAA also allows for the use of an administrative order for information disclosure. Therefore, • Drug courts can pair their 42 CFR consent with a HIPAA administrative order and/or build HIPAA language into their consent

In Drug Court, is the consent really valid? Aren’t defendants being coerced into giving their consents?

Even without written consent, under what other circumstances may you release information?

Permitted disclosures -no consent • Medical emergency • Crimes on the premises • Crimes against staff • Administration / qualified service programs working with drug court • Outside auditors, central registries and researchers • No re-disclosures unless permitted

Mandatory disclosure -no consent • State child abuse laws • A valid court order • State laws relating to cause of death • Duty to protect others, to warn of imminent, serious harm

What if your court clerk answers the telephone, “Good morning. Drug Court.”Is this a violation of the confidentiality laws?

Hypothetical • Joe and Mary are in your drug court. They have different primary counselors at different agencies. At a pre-staffing meeting of treatment providers, the counselors share the following information: Mary’s counselor reports that Mary is thrilled because she and Joe are going to try to have a baby. Joe’s counselor reports that Joe is excited that he and Mary are trying to have a baby, but that although they’ve begun having unprotected sex, he’s unwilling to share with Mary that he’s HIV positive.

Hypothetical • What ethical issues are presented? • What confidentiality issues are presented? • What difference, if any, would it make if the whole team had been given this information? • What difference, if any, would it make if Mary or Joe were underage?

HIPAA • HIPPA Study Guide and Test • Course: Protecting Information Privacy • Employee ID: Your Name • Course Code: 12345 • Web Site: http://209.224.50.33 • Please submit results to Coordinator to keep on file

Ethics, Confidentiality, and HIPAA!