Understanding Ethics, Confidentiality, and HIPAA in Drug Treatment Courts

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Oklahoma Statewide Drug Court Conference
Norman, OK
September 27-28, 2012
Helen Harberts, Esq.
Valerie Raine, Esq
 
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Two major laws apply to participants in drug treatment
courts.
 
1) 42 CFR Part 2 – Confidentiality of Alcohol and Drug
Abuse Patient Records
 
2) HIPAA – Health Insurance Portability and Accountability
Act
Note that VA records not covered by this statute but by a
similar, different statute – 38 C.F.R. Section 15.500
 
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First issued 1975, revised 1987
Designed to address the stigma of addiction
Requires notification of confidentiality, consent forms,
prohibition on re-disclosure
Strict construction “I’m sorry I cannot acknowledge
whether someone is or isn’t in our treatment program”
 
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Records of the identity, diagnosis, prognosis, or treatment
of any patient, which are maintained in connection with the
performance of any program or activity relating to drug
abuse, alcoholism or alcohol abuse education that is
conducted, regulated or assisted by the Federal
government shall be confidential.
 
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Family members – NO
 
Patient’s lawyer – NO
 
Police – NO (not even with search or arrest warrant)
 
Employer - NO
 
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Current patients
 
Past patients, including deceased
 
Individuals who are applying for treatment
 
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Any entity that receives funding directly or indirectly from
the federal government:
 
Block grant funds
501 (c)(3) organizations
Licensed or regulated by federal government
 
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H
ealth 
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nsurance 
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ortability and 
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ccountability 
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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
Protects privacy of health information held by health plans,
health care clearinghouses and most providers, including
drug & alcohol programs
 
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Mandates patient access to records
Form and content of patient notice
Form and content of agreements with qualified service
organizations
Method for revoking consent
Protocols and procedures for research
Circumstances under which past crimes may be reported
 
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HIPAA: health care industry
42 CFR: drug and alcohol programs
The laws cover a lot of the same material
Some points of difference – more specific 
or
 more recent
rule usually applies
For treatment providers, in most cases the rules of 42 CFR
Part 2 are more stringent
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An individual or unit within the drug court is a “program” or
a “covered entity”
 
- Program, if engaged in diagnosis, referral, or treatment –
most drug courts qualify
 
 
- Covered entity – unclear, probably not because not
engaged in financial activities but drug courts’ re-
disclosure of protected information implicates HIPAA
 
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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
 
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Intake
Screening
Assessment
 
 
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1.
Name of person or organization that may make the
disclosure;
2.
Name or title of person (or organization) to whom disclosure
may be made;
3.
Participant’s name;
4.
Purpose of the disclosure;
5.
How much and what kind of information may be disclosed;
6.
Participant’s signature;
7.
Date on which the consent was signed; and
8.
Date, event, or condition upon which the consent will expire
(some states specify maximum duration)
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A proper consent can authorize all parties involved in the
drug court to share information necessary to monitor
treatment progress and compliance
Even with proper consent in place, disclosure is not
mandated if entity thinks information will harm the
individual
Unless consent specifically permits, program cannot
disclose information to law enforcement seeking to
prosecute a separate crime
 
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State law governs when parental consent is necessary for
minor to obtain treatment
The minor’s signature is required for disclosures, even to
parents
Parental consent also needed in states that require
parental consent for treatment
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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.
 
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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.
 
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No criminal justice system exception for family court
setting
Consents in family court must be revocable
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Medical emergency
immediate threat to health and in need of 
 
treatment
cannot disclose to family w/o consent but 
 
medical
personnel can disclose
 
Crimes on the premises – staff can call police, regardless
of whether on or off premises, e.g. counselor on way home
is accosted by patient – but only basic facts
 
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Internal communications
 
Staff within a program can share information on a need to
know basis
 
Staff may share information with a supervising or billing
agency
 
Important to define scope of program – who exactly is a
member of the program?
 
 
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Administration / Qualified Service Organization Agreement
Written agreement between program and an outside
agency that provides supportive service (cannot have
agreement between 2 agencies where both are subject
to 42 CFR)
 
May not enter into QSO with law enforcement without
consent
 
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Outside auditors, central registries and researchers –
funders, licensing agencies permitted to audit, provided
agreement regarding re-disclosure
 
May not re-disclose patient identities in any manner
 
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Communications that do not disclose patient-identifying
information, e.g. aggregate data about patients
 
Research – No identifying information and must either
have a consent (which can be unwieldy) or a waiver from
an Institutional Review Board (IRB)
 
 
 
 
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State child abuse and neglect reporting laws
 
State laws relating to cause of death
 
 
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Court Order
 
Notice to program of Application
Opportunity to be heard
Fictitious name
Confidential proceeding
Finding of good cause ( No other way to get information
& public interest and need outweigh potential injury to
patient)
 
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Tarasoff v. Regents of the University of California,
     17 Cal.3d 425 (1976)
 
 
Psychologist knew of threat by patient to murder
 
girlfriend – did not warn victim – held liable
 
 
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Mandatory duty in 22 states
 
Permissive duty in 17 states and District of Columbia –
includes Oklahoma
 
Other states either have no legislation and/or rely on case
law
 
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Is there an issue about the disclosure of information simply
used to make a referral to treatment?
YES, if the information is derived from a source other than
public records, it is protected
RULE: get your waiver up front, or at least get a partial
waiver until you get the full one. For example, did they
show up at the treatment provider?
 
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Consider what goes in them.  There is the obvious in
terms of 42 CFR & HIPAA, and maybe the less obvious
What about statements made in court that could form the
basis for another criminal case?
What about statements made in open court relating to your
drug test results and progress in treatment?
When do you execute that contract?
 
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Internal communication is permissible on the basis of, “…a
need for the information in connection with their official
duties..”
Ideally, only lawyer representing the participant being
discussed is present
Ideally, only the treatment provider delivering services to
the participant being discussed is present
 
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What happens to confidentiality when court is in session?
Out the window? Not exactly
Drug court teams believe successful outcomes are
promoted by sharing successes and failures in open court,
i.e., part of the court’s official duties
Therefore, important to exercise care in discussion of
highly personal matters
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Design system where:
Court file with drug court related notes are kept
separately from original court file
Ideally, original court file should not indicate case was
transferred to drug court but is this practical? Is it even
possible?
After end of case, drug court file is purged of drug court
related material, which is stored separately and locked
for 6 years
 
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Design system where:
all confidential files are password protected
create levels of access depending on user’s role
 
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Both drug court and non-drug court staff should be trained
in appropriate treatment  of confidential information in drug
court files
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Valerie Raine, Esq.
Center for Court Innovation
rainev@courtinnovation.org
 
Helen Harberts, Esq.
Slide Note

The purpose of this training is to provide a basic understanding of Confidentiality laws as they impact drug court programs, and how, as supervision officers, you can perform your role, while also staying within the law. We are going to focus particular attention on new Privacy rules which are part of the Health Insurance Portability and Accountability Act, also known as HIPAA. We’re also going to focus on 42 CFR (Code of Federal Regulations). Both of these laws keep treatment information confidential. And all drug courts must function within the scope of these laws.

Unfortunately, these laws were not written with drug courts in mind, so the fit isn’t perfect. There are over 1200 drug courts throughout the country operating today, and if you asked those programs, all of them would probably tell you that they are being compliant with the laws, but there are gray areas.

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Explore the importance of ethics, confidentiality, and HIPAA regulations in drug treatment courts. Learn about the laws such as 42 CFR Part 2 and HIPAA that protect the privacy of patient records. Discover who is covered by these laws and the entities that receive federal assistance. Gain insights into the key aspects of the Health Insurance Portability and Accountability Act (HIPAA) and its role in safeguarding health information privacy.


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  1. Ethics, Confidentiality, and HIPAA! Oklahoma Statewide Drug Court Conference Norman, OK September 27-28, 2012 Helen Harberts, Esq. Valerie Raine, Esq

  2. Confidentiality/Privacy Two major laws apply to participants in drug treatment courts. 1) 42 CFR Part 2 Confidentiality of Alcohol and Drug Abuse Patient Records 2) HIPAA Health Insurance Portability and Accountability Act Note that VA records not covered by this statute but by a similar, different statute 38 C.F.R. Section 15.500

  3. 42 U.S. Code 290dd 42 CFR Part 2 First issued 1975, revised 1987 Designed to address the stigma of addiction Requires notification of confidentiality, consent forms, prohibition on re-disclosure Strict construction I m sorry I cannot acknowledge whether someone is or isn t in our treatment program

  4. What 42 CFR Covers Records of the identity, diagnosis, prognosis, or treatment of any patient, which are maintained in connection with the performance of any program or activity relating to drug abuse, alcoholism or alcohol abuse education that is conducted, regulated or assisted by the Federal government shall be confidential.

  5. What About? Family members NO Patient s lawyer NO Police NO (not even with search or arrest warrant) Employer - NO

  6. Who 42 CFR Protects Current patients Past patients, including deceased Individuals who are applying for treatment

  7. Federally Assisted? Any entity that receives funding directly or indirectly from the federal government: Block grant funds 501 (c)(3) organizations Licensed or regulated by federal government

  8. 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 Protects privacy of health information held by health plans, health care clearinghouses and most providers, including drug & alcohol programs

  9. What Does HIPAA Change? Mandates patient access to records Form and content of patient notice Form and content of agreements with qualified service organizations Method for revoking consent Protocols and procedures for research Circumstances under which past crimes may be reported

  10. HIPAA v. 42 CFR Part 2 HIPAA: health care industry 42 CFR: drug and alcohol programs The laws cover a lot of the same material Some points of difference more specific or more recent rule usually applies For treatment providers, in most cases the rules of 42 CFR Part 2 are more stringent

  11. DO THESE LAWS APPLY TO DRUG COURT PRACTITIONERS?

  12. IS THE DRUG COURT A PROGRAM FOR THE PURPOSES OF THE CONFIDENTIALITY REGULATIONS AND WHY?

  13. Two Criteria for Coverage An individual or unit within the drug court is a program or a covered entity - Program, if engaged in diagnosis, referral, or treatment most drug courts qualify - Covered entity unclear, probably not because not engaged in financial activities but drug courts re- disclosure of protected information implicates HIPAA

  14. 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

  15. Obtaining the Consent First contact with an individual Intake Screening Assessment

  16. 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; and Date, event, or condition upon which the consent will expire (some states specify maximum duration) (Consent cannot be revoked unless in the juvenile or family court setting) 1. 2. 3. 4. 5. 6. 7. 8.

  17. Consents A proper consent can authorize all parties involved in the drug court to share information necessary to monitor treatment progress and compliance Even with proper consent in place, disclosure is not mandated if entity thinks information will harm the individual Unless consent specifically permits, program cannot disclose information to law enforcement seeking to prosecute a separate crime

  18. Minors State law governs when parental consent is necessary for minor to obtain treatment The minor s signature is required for disclosures, even to parents Parental consent also needed in states that require parental consent for treatment

  19. IN DRUG COURT, IS THE CONSENT REALLY VALID? AREN T DEFENDANTS BEING COERCED INTO GIVING THEIR CONSENTS?

  20. 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.

  21. 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.

  22. Consents and Family Court No criminal justice system exception for family court setting Consents in family court must be revocable

  23. EVEN WITHOUT WRITTEN CONSENT, UNDER WHAT OTHER CIRCUMSTANCES MAY YOU RELEASE INFORMATION?

  24. Permitted Disclosures-No Consent Medical emergency immediate threat to health and in need of treatment cannot disclose to family w/o consent but medical personnel can disclose Crimes on the premises staff can call police, regardless of whether on or off premises, e.g. counselor on way home is accosted by patient but only basic facts

  25. Permitted Disclosures-No Consent (cont ) Internal communications Staff within a program can share information on a need to know basis Staff may share information with a supervising or billing agency Important to define scope of program who exactly is a member of the program?

  26. Permitted Disclosures-No Consent (cont ) Administration / Qualified Service Organization Agreement Written agreement between program and an outside agency that provides supportive service (cannot have agreement between 2 agencies where both are subject to 42 CFR) May not enter into QSO with law enforcement without consent

  27. Permitted Disclosures -No Consent (cont ) Outside auditors, central registries and researchers funders, licensing agencies permitted to audit, provided agreement regarding re-disclosure May not re-disclose patient identities in any manner

  28. Permitted Disclosures -No Consent (cont ) Communications that do not disclose patient-identifying information, e.g. aggregate data about patients Research No identifying information and must either have a consent (which can be unwieldy) or a waiver from an Institutional Review Board (IRB)

  29. Mandatory Disclosure-No Consent State child abuse and neglect reporting laws State laws relating to cause of death

  30. Mandatory Disclosure -No Consent (cont d) Court Order Notice to program of Application Opportunity to be heard Fictitious name Confidential proceeding Finding of good cause ( No other way to get information & public interest and need outweigh potential injury to patient)

  31. Duty to Warn Tarasoff v. Regents of the University of California, 17 Cal.3d 425 (1976) Psychologist knew of threat by patient to murder girlfriend did not warn victim held liable

  32. Duty to Warn Legislation Mandatory duty in 22 states Permissive duty in 17 states and District of Columbia includes Oklahoma Other states either have no legislation and/or rely on case law

  33. So we have an agreement to participate in drug court-now what? Is there an issue about the disclosure of information simply used to make a referral to treatment? YES, if the information is derived from a source other than public records, it is protected RULE: get your waiver up front, or at least get a partial waiver until you get the full one. For example, did they show up at the treatment provider?

  34. Participant Contracts Consider what goes in them. There is the obvious in terms of 42 CFR & HIPAA, and maybe the less obvious What about statements made in court that could form the basis for another criminal case? What about statements made in open court relating to your drug test results and progress in treatment? When do you execute that contract?

  35. Communication Among Team Members Internal communication is permissible on the basis of, a need for the information in connection with their official duties.. Ideally, only lawyer representing the participant being discussed is present Ideally, only the treatment provider delivering services to the participant being discussed is present

  36. What About the Courtroom? What happens to confidentiality when court is in session? Out the window? Not exactly Drug court teams believe successful outcomes are promoted by sharing successes and failures in open court, i.e., part of the court s official duties Therefore, important to exercise care in discussion of highly personal matters

  37. WHAT IF YOUR COURT CLERK ANSWERS THE TELEPHONE, GOOD MORNING. DRUG COURT. IS THIS A VIOLATION OF THE CONFIDENTIALITY LAWS?

  38. HOW DO YOU PROTECT YOUR WRITTEN AND COMPUTERIZED FILES?

  39. Paper Records Design system where: Court file with drug court related notes are kept separately from original court file Ideally, original court file should not indicate case was transferred to drug court but is this practical? Is it even possible? After end of case, drug court file is purged of drug court related material, which is stored separately and locked for 6 years

  40. Electronic Records Design system where: all confidential files are password protected create levels of access depending on user s role

  41. Training Both drug court and non-drug court staff should be trained in appropriate treatment of confidential information in drug court files

  42. WHO HAS ACCESS TO YOUR WRITTEN AND COMPUTERIZED FILES?

  43. Valerie Raine, Esq. Center for Court Innovation rainev@courtinnovation.org Helen Harberts, Esq.

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