'Prohibited Disclosure' - Behavioral Health Locked Out Of HIEs
Open Minds December 6, 2012
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At our Technology & Informatics Institute last October, there was a session that gave me pause. In our Townhall Session sponsored by Defran Systems, How EHRs & HIEs Are Shaping Integration: A Specialist Provider's Guide To Coordination With Primary Care, there was a robust discussion of the role of health information exchanges in the emerging integrated service systems. What I had not realized is how many health information exchanges (HIEs) have excluded behavioral health provider organizations from participation.
The reason? Very strict interpretation of Title 42 of the Code of Federal Regulations (see Code of Federal Regulations, Title 42: Public Health premium members) regarding disclosure of patient information. These regulations - specifically "Title 42 Part 2: Confidentiality of Alcohol and Drug Abuse Patient Records" - prohibit many forms of disclosure and use of patient records pertaining to addiction treatment.
In this case, disclosure means any communication of patient identifying information, the verification of that information by a third party, or the communication of a patient record after it has been identified. The restrictions revolve around the prohibition of further disclosure of the patients' information without further written consent - general authorizations are not considered sufficient. To further complicate the matter, patients can consent to some information uses, and some information users, but not others.
Since a large proportion of consumers with mental illnesses also have co-occurring addictive disorders and substance abuse problems, this is an issue for all behavioral health specialist programs. I see the strategic issue here is that in an era of preference for "integrated" care models - including pay-for-performance and risk-based contracting models, if behavioral health provider organizations cannot participate in HIE, they will be overlooked in system development. For primary care provider organizations (and the emerging ACOs), it will be far easier to develop their own service systems (which will not have these information disclosure issues) than try to work collaboratively with independent behavioral health provider organizations.
I know the National Council's policy team is working on this issue. And, recently, H. Westley Clark, the director of SAMHSA's Center for Substance Abuse Treatment, asked behavioral health providers in a letter (see ONC asks for help on EHR disclosure consent requirements) to review and comment on rules for managing patient consents within the proposed Definition of Stage 3 Meaningful Use of Electronic Health Records (EHRs).
My colleague, OPEN MINDS Senior Associate Lisette Wright, M.A. recently briefed our team on this issue, which she referred to as a "between a rock and a hard place" situation:
"It's a double-edged sword. We want access to a person's comprehensive record in order to best treat them, but shun access to the highly sensitive mental health records. At least the Office of the National Coordinator for Health Information Technology is now addressing it. Unfortunately, one federal answer won't fit all problems since States also have another layer of their own laws about medical records, mental health records, and privacy. For true integration of physical and behavioral health, and to meet the Triple Aim of health care reform, this issue must be sorted out. It would be wonderful if all EHRs had the capacity to track authorizations, and most do. However, given the sensitive nature of mental health records, it will likely be the end user who will have to decide how and what records get released based on the authorization."
We'll continue to cover the changes in policy and regulation that are needed to allow behavioral health provider organizations to be full participants in HIE. And, in the meantime, don't hesitate to send your HIE-related questions to Lisette Wright or me at firstname.lastname@example.org.
Monica E. Oss
Chief Executive Officer, OPEN MINDS