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

Posted By Sandy Rose, Thursday, December 15, 2011

Our preliminary conclusions are as follows: For the most part, we believe federal and state laws and regulations do allow for easy flow of information and practice, in the true spirit of integration. But, not for all of "us.” If you are an alcohol and drug specialist, or code psychotherapy vs. health and behavior codes, then at least in some states, we are not all equal in the eyes of the law to our medical colleagues, and integration is not so easy. As many know, the Federal Alcohol and Drug Confidentiality law (42CFR Part 2) has specific provisions for consent and confidentiality for those designated covered "programs.” Also, as in NH and numerous other states, there are licensing laws quite explicit asto what kind of informed consent must be provided that applies to mental health practice. Medical providers are not subject to this law. We also believe that if your patient can reasonably expect you are doing psychotherapy regardless of what you call yourself or bill for, you are subject to these licensing laws for mental health provision. How does your referring primary care provider introduce you prior to your warm handoff or intake, and what credentials are alongside your picture or on your staff listing that might provide a reasonable impression that you are a mental health provider?

Given clear expectations for behavioral intervention alone, billing consistent with behavioral consulting, and limiting documentation to non-sensitive information, we believe integration may well be permitted the way it was intended to be. You can chart along with your medical colleagues, release information using your health center policies and have a unified informed consent in the patient handbook at patient registration. However, this has never been tested, and for those in states where provisions for mental health practice are prescribed with respect to these issues, you are in uncharted (so to speak) territory.

One last (integrated) worry: Did you know that any of your records (mental health or otherwise) which are received from specialized "programs" under the Federal Alcohol and Drug Confidentiality law (42CFR-Part2) cannot be re-released without specialized releases? HIPAA compliant releases are not enough. And if you indeed would like to treat alcohol and drugs as a specialist in your health center, (important given the prevalence of this problem in primary care), you are covered under Part 2 and subject to those set of provisions for consent and confidentiality provision.

As recently noted in the calming SAMHSA (October, 20112) article "Don’t Be Spooked” ( , there are in fact quite reasonable solutions to a number of these concerns. For example, where applicable, agencies can expedite communications using Qualified Service Organizations and Organized Health Care Delivery Systems. However, as stated even in this reassurance, "Your state mental health code or state alcohol and drug abuse agency may impose additional confidentiality protections that must be addressed. These must be linked with the HIPAA and 42 CFR Part II to create an overarching policy for information sharing”. Although the article describes two progressive state efforts to address confidentiality regulations to facilitate integration, we have found the vast larger majority of states still lagging behind.

It would sure be nice to have a single or reasonably understandable source of accessible information that can help the average administrator or clinical director understand where their behavioral health providers might fall with respect to the laws and grasp the growing options for meeting the challenges of these ethical issues. It is a costly effort to navigate these issues:
The excellent LAC guide to this law is $89.00 (see for starters, not to mention the legal expenses and staff time in getting up to speed. It would sure be nice if there was a primer and open forum for those of us who chose not to go to law school and who do not have a year or two to devote exclusively to policy making for these purposes alone. There are excellent resources including the SAMSHA website, the National Council, the Legal Action Center, and the NACHC. We have had some very helpful discussions with staff from these agencies, including Attorney Katie O’Neill form the LAC, and Mike Ladierre from the National Council’s VP of HIT and Strategic Development, and formerly from the NACHC. But more educational assistance is needed for those starting out and even those who are beyond beginners in the field.

We hope that agencies such as SAMHSA might continue to assist with ongoing FAQs that can clarify ambiguities in the laws such as who is covered under 42CFR and what a typical FQHC might fall with respect to a "program”. We hope that national guilds such as the ASPPB can help guide the state licensing boards to understand integration and behavioral interventions as distinct from mental health practice and afford protections for those who are licensed and working in behavioral health settings wanting to be truly integrated. We believe strongly that the laws have a long way to go to reflect the movement as it was intended specialty care. We hope our members can help educate legislators about the benefits of accessible information and procedures in integrated settings, and disseminate model statutes such as in Washington, to help guide the process.

In the meantime, we hope that our research can inform others wanting to ensure their practices and policies and procedures are grounded not only in theory, but the realities of regulation around them. We hope this study will shave off a little of the learning curve for colleagues in developing best practices for their health center. Finally, we hope that this will begin a larger discussion that can serve as a forum to discuss questions and maybe even reduce the Xanax you ingest during your own program development.

The recent release of SAMHSA's FAQ can be found at:

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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