Legal and Ethical Foundations in Integrated BH Setting: Foundations for Best Practices

1. Session # A5A October 6, 2012 Legal and Ethical Foundations in Integrated BH Setting: Foundations for Best Practices Cathy Hudgins, PhD, LPC, LMFT, Asst Prof. , Counselor Education, Radford U. VA Sandra Rose, PhD, Director of BH: Goodwin Community Health Center, NH Peter Fifield, MS, BH Consultant, Families First Health and Support Center, NH Steve Arnault, MA, VP of Quality, Compliance and Integrated Care, CLM, NH Collaborative Family Healthcare Association 14th Annual Conference October 4-6, 2012 Austin, Texas U.S.A.

2. Faculty Disclosure Please include ONE of the following statements: I/We have not had any relevant financial relationships during the past 12 months.

3. Objectives • Identify federal and state laws relating to consent and confidentiality in integrated settings. • Relay key interpretations of federal and state laws governing confidentiality and consent as they apply to integrated settings. • Identify sample practices and trend in the field with respect to informed consent and confidentiality integrated settings.

4. Learning Assessment A learning assessment is required for CE credit. Attention Presenters: Please incorporate audience interaction through a brief Question & Answer period during or at the conclusion of your presentation. This component MUST be done in lieu of a written pre- or post-test based on your learning objectives to satisfy accreditation requirements.

5. Are we the Same or Different? IC and Confidentiality

6. Regulatory Influences: IC and Confidentiality

7. HIPAA: Informed Consent

8. HIPAA –Confidentiality and IC: PCPs/BHP Comparison • No distinction: No authorization required if health purpose. IC required by all providers. • Psychotherapy Notes: “Mental health professional” recording/analyzing contents of a conversation in a session and “separated” from the rest of the record.” • Excludes Rx, summary of dx, status, tx plan, sxs, px and progress. 45CFR 164.501

9. Psychotherapy Notes • “Mental health professional” recording/analyzing contents of a conversation in a session and “separated” from the rest of the record.” • Excludes prescriptions, summary of diagnosis, status, treatment plan, symptoms, prognosis and progress. 45CFR 164.501

10. HIPAA: Confidentiality

11. 42CFR Part 2: The Alcohol and Drug Confidentiality Law • Purpose: To “ensure that an alcohol or drug abuse patient in a federally assisted alcohol or drug abuse program is not made more vulnerable by reason of the availability of his or her patient record than an individual who has an alcohol or drug problem and who does not seek treatment.”

12. 42CFR Part 2:

13. Are you covered? Yes, if

14. Are you a “Program”? yes Or AND yes yes SAMSHA 2011 FAQs: Applying the Substance Abuse Confidentiality Regulations 42CFR Part 2

15. If Covered, Need

16. Exceptions • Written authorization • Internal Communication within a “program” or “an entity having direct administrative control” • Medical emergencies (only to medical personnel) • Court orders (not all of these) • Crimes at program or against program staff • Research • Audits and evaluation • Child Abuse (but only the specific action of neglect/abuse) • Qualified Service Organization/Business Associate Agreement. Adapted from Legal Action Center: Confidentiality and Communication: A guide to the Federal Drug and Alcohol Confidentiality Law and HIPAA (2012)

17. Part 2: Informed Consent and Confidentiality

18. State Laws: Confidentiality • Licensing Laws: Vary by discipline and state. • Often same for PCP and BHPs—In 13 states, the privilege for BHPs is compared to that between lawyer and their client. • No law specifying how the privilege is to be protected. • Sensitivity test: the greater the sensitivity of information, the more protections (e.g., Berg v Berg, 2005).

19. Case Law: Confidentiality • Berg vs. Berg (2005)-Father denied access to child’s record. • NH Supreme court asserted that the therapist-client privilege may be even more compelling than that behind the usual physician-patient privilege because of the greater demand for confidence and trust that the patient needs to enter treatment, and the need to make disclosures important for psychotherapy vs. that which may be required in the treatment of physical ailments.

20. State Law: Confidentiality Consider sensitivity of information, patient expectations and ethical guidelines for practice.

21. State Statutes: Informed Consent • Varies by state and discipline.

22. NH Statute: Mental Health Practice: Chapter 330-A:15 • “A copy of the patient's mental health rights shall be posted in a prominent location in the office of the mental health practitioner.” • “Mental Health Bill of Rights,” directs each licensee to provide patients information regarding office hours, fees, missed appointments, billing policies, and even to be informed that they are entitled “[to] a safe setting and to know that the services provided are effective and of a quality consistent with the standard of care within each profession and to know that sexual relations between a mental health provider and a client or former client are a violation of the law.” (MHP 502.02)

23. State Law: Informed Consent

24. BHPs vs. MHPs

25. Analogy: Coaching • Coaching-- “helping clients discover their goals for improvement, define specific goals and strategies for reaching these goals and then enabling the client, through regular counseling, to achieve these goals” (from the Ethics Code of the International Coach Federation, cited by Dr. Harris, APAIT). Coaching: A New Frontier Some Questions and Answers by Eric A. Harris, J.D., Ed.D. Risk Management Consultant The Trust http://www.apait.org/apait/resources/articles/coaching.pdf (downloaded 9.29.12)

26. Regulation of Coaching • Coaching is considered within the scope of practice by psychologists. • “It is unlikely that psychologists would be able to escape licensing board regulation by opening separate “coaching only” businesses even if they do not represent themselves as psychologists in providing these services.” (Harris, APAIT) • When licensing boards receive complaints by psychologists providing coaching services, they will use the duck test--“If it waddles, quacks, and swims like a duck, it will be treated like a duck, even if you are calling it an elephant”. (Harris, APAIT) • “The closer to psychotherapy, the higher the power differential, the more psychologically robust the techniques, the greater the level of regulatory oversight and the greater similarity of oversight to that provided to psychotherapy”. (Harris, APAIT) Coaching: A New Frontier Some Questions and Answers by Eric A. Harris, J.D., Ed.D. Risk Management Consultant The Trust

27. By Analogy: