The Health Insurance Portability and Accountability Act (HIPAA) is a federal law that safeguards the privacy of individuals' health information, including sensitive mental health records. Yet, over the years, there have been widespread misunderstandings about the extent to which mental health providers can share a patient's information with their family, friends, and other involved parties. This often led to situations where loved ones were unable to effectively communicate with healthcare providers, ultimately hindering the care and support available to those living with mental illness.
Recognizing the need for clarity, the Office of Civil Rights (OCR) at the Department of Health and Human Services (HHS) issued guidance to help clarify HIPAA's provisions around the sharing of mental health treatment information. This guidance tries to promote open communication between providers and a patient's support network, ensuring that individuals with mental health conditions receive the best possible care and treatment.
Can healthcare providers share mental health information with family and friends?
One of the primary concerns surrounding HIPAA and mental health is the ability of healthcare providers to share information with a patient's family members and friends. The good news is that, in many cases, providers are allowed to do so, as long as the patient does not object.
The OCR's guidance clarifies that healthcare providers may share relevant information about a patient's mental health treatment with their family or friends if the patient does not object to the disclosure. This can be done in a few ways:
- Obtaining verbal permission: Providers can simply ask the patient for permission to share information with specific individuals and document their consent.
- Informing the patient: Providers can inform the patient that they intend to discuss certain information with family or friends and give the patient the opportunity to object.
- Inferring consent: If a patient invites family or friends to be present during a treatment session, the provider can reasonably infer that the patient does not object to the disclosure of information to those individuals.
If the patient is an adult and is deemed capable of making their own healthcare decisions, but they object to the release of information, the provider must respect their wishes and refrain from sharing the information.
Read also: Patient consent: What you need to know
When can providers share information if the patient objects?
In situations where the patient objects to the release of their mental health information, but the provider determines that the patient lacks the capacity to make healthcare decisions, the provider may still choose to share information with family, friends, or other individuals involved in the patient's care. This decision is based on the provider's professional judgment and the belief that it is in the patient's best interest.
Importantly, a court order is not required for a provider to make this determination of incapacity. The discretion lies with the treatment provider, who must carefully assess the patient's ability to make informed decisions about their care.
Balancing privacy and disclosure: How much information can be shared?
Even when providers are permitted to share mental health information with family and friends, they must exercise caution and discretion in the amount and type of information disclosed. The guidance from the OCR states that providers should only share the information that is necessary or directly related to the family member or friend's involvement in the patient's care.
Psychotherapy notes, which contain detailed records of specific conversations during counseling sessions, are treated differently under HIPAA. In most cases, providers must obtain the patient's explicit permission before sharing information from these highly sensitive notes.
Related: Psychotherapy notes and HIPAA
Communication from family and friends: A two-way street
HIPAA not only addresses what providers can share with a patient's support network but also acknowledges the benefits of that network being able to communicate with the provider. The guidance clarifies that family members or friends can share information with a healthcare provider if they believe it may be relevant or helpful to the patient's treatment, and the provider is not required to disclose this communication to the patient.
This two-way exchange of information can be beneficial in ensuring that the provider has an understanding of the patient's situation and can make informed decisions about their care.
Navigating HIPAA for minors: Considerations for parents and guardians
When it comes to children and adolescents, the HIPAA guidelines around information sharing with parents or guardians are generally more straightforward. In most cases, healthcare providers are permitted to share a minor's treatment information with their parent or legal guardian.
However, the age at which a child is considered an adult for healthcare decision-making purposes can vary by state. While HIPAA generally defers to age 18 as the threshold, some states may have different standards, so it's necessary to be aware of the specific laws in your jurisdiction.
Additionally, there may be other federal or state-level laws that impose additional restrictions on sharing information with parents or guardians, particularly in the case of treatment for substance abuse or certain mental health conditions. Providers must be diligent in understanding the nuances of these laws to ensure they are in compliance.
Read also: Does HIPAA apply to minors?
Exceptions: When can providers share information with law enforcement?
While HIPAA generally tries to protect the privacy of mental health information, there are certain circumstances in which providers may be permitted or even required to share information with law enforcement officials. This is typically the case when the individual living with mental illness poses a danger to themselves or others.
In these situations, the provider may disclose the necessary information to law enforcement or other relevant authorities, as long as the disclosure is consistent with applicable laws and standards of ethical practice. The goal is to ensure that appropriate steps can be taken to address the potential threat and provide the necessary support and intervention.
Read more: Does HIPAA allow sharing with law enforcement?
FAQs
Should therapists comply with HIPAA regulations?
Yes, therapists are considered covered entities under HIPAA and must comply with the regulations. Failure to do so can result in big fines and penalties.
Does HIPAA apply to mental health records?
Yes, HIPAA applies to mental health records. It provides protection for all health information, including mental health records, ensuring that patient information remains confidential and is only disclosed under specific circumstances, such as for treatment, payment, and healthcare operations.
What are the constraints on sharing mental health information?
The constraints on sharing mental health information include obtaining patient consent for most disclosures, especially for sensitive information like psychotherapy notes. Information can be shared without consent for treatment, payment, and healthcare operations, but disclosures must be limited to the minimum necessary information.
Learn more: HIPAA Compliant Email for Mental Health Professionals
Farah Amod
