HIPAA Guidance Released on Sharing Information Related to Mental Health

The U.S. Department of Health and Human Services (HHS) recently released new guidance addressing how the HIPAA Privacy Rule works to protect individuals’ privacy rights in the context of mental health information and the circumstances in which health care providers may need to share this information with other individuals.  The guidance focuses on frequently asked questions regarding when the Privacy Rule permits a health care provider to share the protected health information of a patient receiving mental health treatment, including when a health care provider may:

  • Communicate with a patient’s family members, friends, or others involved in the patient’s care;
  • Communicate with family members when the patient is an adult;
  • Communicate with the parent of a patient who is a minor;
  • Consider the patient’s capacity to agree or object to the sharing of their information;
  • Involve a patient’s family members, friends, or others in dealing with patient failures to adhere to medication or other therapy;
  • Listen to family members about their loved ones receiving mental health treatment;
  • Communicate with family members, law enforcement, or others when the patient presents a serious and imminent threat of harm to self or others; and
  • Communicate to law enforcement about the release of a patient brought in for an emergency psychiatric hold.

The guidance also provides reminders about related issues including the special protections afforded to psychotherapy notes under the Privacy Rule.  Psychotherapy notes are treated differently because they often contain particularly sensitive information and are not generally useful for treatment, payment or health care operations other than by the therapist who created them.  Another related situation addressed is when a healthcare provider knows that a patient with a serious mental illness has stopped taking prescribed medication and when a provider in this situation may share this information with the patient’s family members.  It is also important for mental health providers be aware of state mental health privacy laws and to understand how those laws are more restrictive than HIPAA. Where a state law provides greater privacy protections to individuals, including in the area of mental health, the state law, rather than HIPAA must be followed.

The privacy rights and protections afforded under HIPAA are critical to fostering patient trust with health care providers.  Yet these protections must also be balanced against situations when it may become necessary to share protected health information in connection with the patient’s treatment and safety.  The recent HHS guidance seeks to shed light on the appropriate protections and disclosures of mental health information in recognition of this important balance.

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