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Thursday, July 1

Since You Asked: One of a series of articles on legal issues in social work practice

Sandra G. Nye, JD, MSW

Question: What’s going on with confidentiality in Illinois right now?

Answer: Actually, quite a bit!

 IMPLEMENTATION OF HITECH RED FLAG RULES DELAYED

The rules require “creditors” to develop plans for identifying transactions that could indicate fraud or identity theft. The Federal Trade Commission (FTC) devised these rules to combat, among other things, identity theft. Among those required to comply are health care providers and other professionals who extend credit to clients or patients. It seems that there has been considerable fraud perpetrated upon providers, health care insurers, and legitimate recipients of health care services and goods by illegal use of the identities of legitimately insured people.

 The rules require “creditors” to develop plans for identifying transactions that could indicate fraud or identity theft. The rules became effective in 2008, but full compliance has been delayed at least five times. On May 28, 2010, the FTC extended the previous deadline of June 1, 2010, to December 31, 2010, unless Congress passed legislation on the rules with an earlier effective date. The Federal Court in Washington, DC, has declared that the Red Flag Rules may not be applied to attorneys. In May, the American Medical Association (AMA) and other groups filed suit asking a federal court to prevent the FTC from applying the rules to physicians or medical practices. Other interest groups are lobbying Congress for exemptions. The House has already approved a bill exempting from the Red Flag requirements, "…health care, accounting or legal practices with 20 or fewer employees," as well as any business that knows its clients individually where identity theft is not likely. The Senate version of the bill is under consideration.

 It’s a pity that the last extension wasn’t announced a few months earlier. Many health and human service providers have invested considerable resources in getting ready for the June 1, 2010, deadline. But there it is!

 USE OF MENTAL HEALTH RECORDS IN DIVORCE CUSTODY CASES

In the case of Johnston v. Weil, an ex-wife filed suit in Cook County against her two ex‑husbands, the child’s appointed representative in the divorce proceedings, and attorneys who represented the ex‑husbands in their respective divorce proceedings. She alleged that the defendants violated the Illinois Mental Health and Developmental Disabilities Confidentiality Act (IMHDDCA) by disseminating, or causing to be disseminated, information obtained by a professional witness who was appointed by the circuit court pursuant to the Illinois Marriage and Dissolution of Marriage Act. In December 2009, the Illinois Appellate Court for the First District (Cook County) considered the case and held that the ex‑wife’s participation in a custody evaluation performed by a court-appointed evaluator did not constitute a therapeutic relationship and thus was not protected by IMHDDCA.

The Illinois Marriage and Dissolution of Marriage Act (IMDMA) provides mechanisms for court appointment of an independent evaluator on custody and visitation issues for the purpose of informing the circuit court in its adjudication of these issues. The expert witness is appointed to protect the interests of the minor children. The expert is the court’s witness and provides the examination findings to the court and the parties’ attorneys. The services are not for therapeutic purposes, and any party may call the evaluator to testify at trial. The expert’s position might be adverse to one of the witnesses who participated in the evaluation, and this would be contrary to the goal of mental health services provided in context of therapeutic relationship between therapist and patient.

 It should be noted that the Confidentiality Act specifically exempts records and communications made to or by a therapist in the course of examination ordered by the circuit court when the individual examined was informed that such records and communications would not be considered confidential. In the Johnston case, the examining psychiatrist informed the plaintiff-ex-wife that her communications were not confidential and that she would present her findings to the circuit court, the parties, and their attorneys, pursuant to the court’s order. The expert’s material was deemed to be not confidential under IMHDDCA.

 IMDMA also provides for an examination by an expert chosen by one of the parties as an adversary expert, as distinguished from a court-appointed independent expert. Johnston v. Weil does not address this issue. It remains to be seen what a circuit court would do in that circumstance. Further, HIPAA regulations provide for the entry of a “protective order” to shield mental health information from re-disclosure or used for any purpose but the case in which the order is entered.

 The Illinois Supreme Court has granted leave to appeal Johnston v. Weil, and that appeal is just underway. It remains to be seen what our highest court will do. According to chatter, some of the mental health professional associations are planning to offer amicus curiae briefs to assist the Supremes in their decision. Meanwhile, training and discussion are needed now in the mental health field to arrive at methods to assure appropriate confidentiality in divorce/custody cases.

 HIPAA RULES PROTECTING HEALTH AND MENTAL HEALTH INFORMATION IN LITIGATION SITUATIONS

HIPAA and Illinois law provide for protection of health and mental health information in judicial and administrative proceedings. Under the Privacy Rule, covered entities may disclose protected health information (PHI) for judicial and administrative proceedings in response to an order of a court or administrative tribunal, provided that the covered entity discloses only the PHI expressly authorized by such order. Providers may also disclose in response to a subpoena, discovery request, or other lawful process, not accompanied by an order of a court or administrative tribunal, only if satisfactory assurance is provided from the party seeking the information that reasonable efforts have been made to ensure that the individual who is the subject of the PHI has been given notice of the request or reasonable efforts have been made to secure a qualified protective order that meets the rule requirements.

 Assurances require a written statement and accompanying documentation demonstrating a good faith effort to provide notice to the individual—including sufficient information about the litigation or proceeding in which the PHI is requested—to permit the individual to raise an objection to the court or administrative tribunal.

 Providers must provide assurance that the time for the individual to raise objections to the court or administrative tribunal has elapsed, and either no objections were filed or all objections filed have been resolved and the disclosures sought are consistent with the resolution. Alternatively, satisfactory assurances may be met by a written statement and accompanying documentation that the parties to the legal dispute have agreed to a qualified protective order and have presented it to the court or administrative tribunal with jurisdiction over the dispute, or the party seeking the PHI has requested a qualified protective order from such court or administrative tribunal.

 A qualified protective order with respect to PHI is an order of a court or of an administrative tribunal or a stipulation by the parties to the litigation or administrative proceeding that

prohibits the parties from using or disclosing the PHI for any purpose other than the litigation or proceeding for which such information was requested. It also requires the return to the covered entity or destruction of the PHI (including all copies made) at the end of the litigation or proceeding.

 A covered entity may disclose PHI in response to a lawful process without receiving satisfactory assurances of the kind described if the covered entity itself makes reasonable efforts to provide notice to the individual sufficient to meet the notice requirements.

 Providers should educate their patients and clients of the availability of such protections when records or information are sought for litigation purposes. Further, I strongly recommend that providers take legal consultation upon receiving a demand for PHI and fully record their efforts and actions in the patient/client chart.

Posted on 07/01/10 at 08:22 AM

Comments

thanks for the informative article.

I thought I accessed this before on this urL : http://naswil.org/news/networker/featured/since-you-asked-8/ ; which now turns up a blank page.

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