Changes in Washington State Confidentiality Laws in 2009

1. Changes in Washington State Confidentiality Laws in 2009 Gregory Robinson Washington Community Mental Health Council

2. Two significant bills passed in 2009 Substitute House Bill 1300, described as “Mental Health Services Information—Access” House Bill 2025, described as Treatment Records – Sharing—Coordinated Care” Both bills modified 71.05 RCW

3. Important Federal Confidentiality Laws and Regulations These are unchanged: HIPAA – Health Insurance Portability and Accountability Act – Privacy Rule 42 CFR Part 2 – prohibits disclosure, unless the patient has consented in writing or the disclosure falls within limited exceptions (e.g., child abuse reporting, medical emergencies).

4. HIPAA’s effect on information access has been minimal for mental health There are requirements for business associate contracts, and privacy practices notices to patients, and disclosure accounting, but State law RCW 71.05 has generally been more restrictive about access to information about mental health services

5. A murder on Capitol Hill in Seattle precipitated SHB 1300 Shannon Harps was stabbed to death on New Years Eve in 2007. King County Prosecuting Attorney Dan Satterberg headed a task force that looked into the community supervision of her killer, James Williams During its deliberations Isaac Zamora went on a shooting rampage in Skagit County, killing 6

6. Task force produced 57 recommendations, including Task force reported that communication between law enforcement, corrections officers, and mental health providers was a problem Many professionals were prohibited from communicating with others because of confidentiality laws.

7. Satterberg report In some cases, even where no legal prohibitions existed, there was a perception of a prohibition of sharing information, and the information was not shared.

8. Satterberg report (cont.) Statutes regarding confidentiality were not all located in one place, and a determination of the kinds of data and communications allowed to be shared was sometimes laborious and complicated.

9. Origin of SHB 1300 Rep. Mary Lou Dickerson participated in the task force, and introduced four bills in the 2009 legislative session, including SHB 1300 After normal legislative processes, the bill passed both the House and the Senate, with only one dissenting vote Amended RCW 71.05.020, 71.05.390, 71.05.445, and 71.05.630

10. Some of the changes are just organizational Definitions that were in 71.05.445 were moved to the main definitions area, 71.05.020, with no real changes Old language that was in 71.05.630 disappeared, but see 71.05.385 Language was added in several places in 71.05.390 to specify that “disclosure under this subsection is mandatory” under HIPAA

11. Required vs. permitted under HIPAA Only required disclosures are to individual, of who has received information, and to the Feds for enforcing HIPAA All other disclosures are “permitted” if certain conditions are met Disclosures to law enforcement must be required by law in order to be permitted

12. New elements in RCW 71.05.385 New classes of public workers are authorized to receive certain information, about certain individuals, for certain purposes: Law enforcement officers Jail personnel DMHPs Public health officers

13. Additional information recipients (cont.) Therapeutic court personnel Indeterminate Sentence Review Board personnel Department of Corrections personnel

14. Information to be released • The fact, place, and date of an involuntary commitment, the fact and date of discharge or release, and the last known address of a person who has been committed or

15. Information related to mental health services concerning a person who: Is currently committed to the custody or supervision of the department of corrections or the indeterminate sentence review board under chapter 9.94A or 9.95 RCW; or Has been convicted or found not guilty by reason of insanity of a serious violent offense; or Was charged with a serious violent offense and such charges were dismissed under RCW 10.77.086.

16. Allowable purposes for requesting information • Completing presentence investigations or risk assessment reports; • Assessing a person's risk to the community; • Assessing a person's risk of harm to self or others when confined in a city or county jail;

17. More allowable purposes for requesting information • Planning for and provision of supervision of an offender, including decisions related to sanctions for violations of conditions of community supervision; • Responding to an offender's failure to report for department of corrections supervision.

18. Requesting person must have reasonable suspicion that the person Has engaged in activity indicating that a crime or a violation of community custody or parole has been committed; or Based upon his or her current or recent past behavior, a crime or a violation of community custody or parole is likely to be committed in the near future; or Is exhibiting deterioration in mental functioning which may make the individual appropriate for civil commitment under 71.05 RCW.

19. How do you know that the request is legitimate? They tell you it is – you can rely on their assertion Information request must be on a form that has been vetted by a large group of stakeholders, as required in 71.05.385 Current version of the form will be used for six months as a trial run If improvements are needed that is when the form will be reviewed

20. HB 2025 provisions Allows release of information without authorization to licensed mental health professionals, and certain licensed health professionals Recipient of information must be providing care, or the person has been referred to them for evaluation or treatment The purpose is to assure coordinated care & treatment

21. Licensed health care professionals who can receive information without informed consent Physicians Physicians assistants Osteopaths Osteopath PAs Naturopaths Administrative and office support staff for the above professionals are also permitted recipients ARNPs RNs LPNs

22. Why release without authorization, if it is optional? Obtaining authorizations can be time-consuming, particularly if next visit is not scheduled for near future Coordination with primary care can help to address health disparities Feedback from pediatricians, parents, is that mental health system does not work well with others

23. Health care integration is coming Community mental health needs to have strong relationships with primary care Those relationships can help inform community mental health providers about serious issues of concern for the consumer Those relationships need to identify what information the primary care provider needs Without that understanding, problems can arise that seriously impair the relationship

24. Psychotherapy notes still require authorization for release Psychotherapy notes means notes recorded (in any medium) by a health care provider who is a mental health professional documenting or analyzing the contents of conversation during a private counseling session or a group, joint, or family counseling session and that are separated from the rest of the individual’s medical record.

25. Progress notes are not psychotherapy notes Psychotherapy notes excludes medication prescription and monitoring, counseling session start and stop times, the modalities and frequencies of treatment furnished, results of clinical tests, and any summary of the following items: Diagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date.

26. Psychotherapy use or disclosure authorization requirement exceptions For treatment provided by the covered entity. For a covered entity’s own training, and to defend itself in legal proceedings brought by the individual For HHS to investigate or determine the covered entity’s compliance with the Privacy Rules To avert a serious and imminent threat to public health or safety

27. Psychotherapy notes authorization exceptions (cont.) To a health oversight agency for lawful oversight of the originator of the psychotherapy notes For the lawful activities of a coroner or medical examiner Or as required by law, subject to strict limitations.