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What A Conundrum: Confidentiality And Integrated Care--Part One

Posted By Sandy Rose, Thursday, December 8, 2011
People accuse me of being a closet-lawyer-wanna-be.  I vehemently deny these charges.  My obsession over ethics statutes has far more to do with my anxiety disorder than any career ambition (although Lord knows, I certainly would not mind the money).  

As one who transitioned from specialty care to a fully integrated FQHC setting, I was bound to get nervous in uncharted waters.  It was not the role change or frantic pace that got me going.  It was confusion: How could I integrate into a medical world that was held to different ethical standards and licensing laws?  No medical colleague I ever knew was required to provide the specific language for informed consent prior to starting treatment that is mandated in our licensing law.  In NH, we have very specific language, amounting to pages of information, which licensed psychologists must provide prior to mental health treatment, in addition to informed consent requirements that apply to all health workers.  Nor did my medical colleagues appear to do much beyond securing the HIPAA general consents for release of PHI  prior to collaborating outside the practice:  They routinely picked up the phone and talked with their colleagues using only general releases.  Unlike HIPAA’s provision for exchange of information for health purposes, the ethical standards for mental health providers require specific releases rather than general consents before communication to external providers.  

Don’t get me wrong:  I harbor no masochistic tendencies and do not relish the response of the medical records and front end staff faced with endless releases and four page consents that were so (relatively) easy at my former specialty practice site.  Most importantly, I would not be here at an FQHC if I did not wholeheartedly believe in the need for full access to my records by the primary care providers and operational efficiency of my center.  I also know that our viability as a profession requires us to be on par with the healthcare providers in optimizing efficiency and accessibility of our practice.   I just wasn’t sure that the laws and ethics caught up to this need.  If I did "behavioral intervention” vs. "mental health” care, how much do I have to comply with my state laws and regulations intended for "mental health practice?” How much is "enough” informed consent for a warm handoff?  Do behavioral interventions, even if billed using H&B codes vs. the CPT therapy codes, make me immune from having to provide full informed consent as mandated by my state licensing law? Do patients expect more privacy from us, and does this set us apart from our medical colleagues in all the above?  Am I a covered "program” under 42CFR Part 2 because I diagnose and treat alcohol and drug problems in the health center, but do not "hold myself out” as a specialist?

It turns out that I found little clarity or even discussion of these topics in the integration literature.  And, not many really wanted to talk much about this either. I used to take the unanswered emails personally, but have since concluded that few like to talk about something so messy. Go figure.  It was also clear that there were different approaches to this vacuum--As one successful administrator responded, "It is better to ask forgiveness than permission” when practicing in areas of ambiguity. Alternatively, one could simply stick one’s head in the sand until policy, at least in my state, catches up with integration.

Fortunately, there were others confused just like me, and we bonded over our drinks and questions at last year’s CFHA conference.  These colleagues (Cathy Hudgins, Pete Fifeld, and Steve Arnault) came from various aspects of integrated care—education, service provision and administration.  We decided to see what we could learn collectively through a systematic course of study, from all our perspectives.  Our goal was to  develop a research base to guide practice relating to informed consent and confidentiality in integrated settings: Our plan of attack was as follows:
  1. Identify all the  federal and state statutes, regulations, and discipline-specific ethical guidelines for psychological interventions that we could find on informed consent and confidentiality for behavioral health service provision.
  2. Survey key national agencies and stake-holders including the National Council, NACHC, LAC, SAMHSA for guidance and  interpretation of ambiguous laws.
  3. Survey the literature (books, articles), provider list serves, and practice manuals to identify patterns of practice.  
  4. Consult with lawyers we knew who could assist in interpretation of any remaining ambiguities. 
We presented a manic overview of our findings at a 20 minute presentation at last month’s CFHA conference in Philadelphia.  We are preparing a full report of our findings and analysis for an upcoming article on this topic.  It will include a compilation of state and federal laws impacting confidentiality and informed consent for comparison and analysis.  We have been most interested in how these laws and regulations are different for BH providers than for medical providers, and what this means for integration. Can we truly have one informed consent that covers all disciplines, and are there differences in the regulations (rather than theory) that set us apart when it comes to chart entries?  We have drafted a "best practices” protocol based on our findings and will include this in our discussion next week in part 2 of What A Conundrum: Confidentiality And Integrated Care.  

Sandy Rose is a psychologist and Director of Behavioral Health for Goodwin Community Health, an FQHC in the Seacoast area of NH. She is past president of the New Hampshire Psychological Association and served two terms on the Council of Representatives of the American Psychological Association. She is currently a Psychology Advisory Member of the New Hampshire Board of Mental Health Practice.

The view expressed in the blogs and comments should be understood as the personal opinions of the author and do not necessarily reflect the opinions and views of the Collaborative Family Healthcare Association (CFHA). No information on this blog will be understood as official. CFHA offers this blog site for individuals to express their personal and professional opinions regarding their own independent activities and interests.

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Comments on this post...

Randall Reitz says...
Posted Tuesday, December 13, 2011
Sandy, This is a great treatise of a desperately needed topic. I tend to be in the "ask forgiveness rather than permission" group myself, and I worry that by asking these questions we put ourselves on an inevitable course toward 4-page consent forms for 1-time BH interventions.

That being said, the wild, wild west of collaborative care freedom does have some shortcomings. For example, I saw a couple for sex therapy yesterday. While I agree that sexual health is within the purview of the services provided by the medical staff in my office, I didn't feel comfortable writing a note for this session that included the level of detail that I would write for a more vanilla depression session. Even though the couple had signed consent for inclusion of their notes within the electronic medical record, I think they would have been surprised to discover that their neurologist could have accessed this information.

Similarly, as my hospital is the largest employer in-town, I often get hospital employees referred to me for counseling. To date, I have successfully referred most of them on because neither of us were comfortable with supervisors and administrators having access to the records that I would have created. And, our hospital fortunately has a generous EAP program, so someone else in the community could provide the services at lower (no) cost.

I look forward to part 2, and I pray that it also includes amazing lines, such as "I used to take the unanswered emails personally, but have since concluded that few like to talk about something so messy."
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Sandra Rose says...
Posted Saturday, December 17, 2011
Thanks so much for your comments. Agree that the situation calls for a case by case analysis as you describe, factoring in the needs of the patients and potential consequences for charting in an integrated EMR. And, hope your prayers were answered. Sandy
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