Ethics,%20Confidentiality,%20and%20HIPAA!

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Ethics, Confidentiality, and HIPAA!

• 2006 ASAC
• Drug Court Confidentiality
• FMJ Multi- County
• November 8, 2006

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Confidentiality/Privacy

• Several rules apply to participants in Drug
  treatment courts.
• 42 CFR Part 2 The alcohol and substance abuse
  treatment confidentiality rule.
• HIPAA New federal rules covering all health
  related information.

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42 U.S. Code 290dd42 CFR Part 2

• First issued 1975, revised 1987
• Designed to help deal with the stigma of
  addiction.
• Requires notification of confidentiality, consent
  forms, prohibition of redisclosure
• Im sorry I cannot acknowledge whether someone
  is or isnt in our treatment program.

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What 42 CFR Covers

• Any program or activity relating to substance
  abuse education, prevention, training, treatment,
  rehabilitation or research which is directly or
  indirectly assisted by any department or agency
  of the United States.

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HIPAA

• Health Insurance Portability and Accountability
  Act of 1996
• Designed to ensure maintenance of health
  insurance coverage when you change jobs.
• Administrative simplification Healthcare
  processes becoming very complex look to
  standardize information make it easier.
• Protect confidentiality and security of patient
  information

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Is your Drug Court a HIPAA Covered Entity?

• http//www.cms.hhs.gov/hipaa/hipaa2/support/tools/
  decisionsupport/default.asp

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HIPAA vs. 42 CFR Part 2

• The laws cover a lot of the same material.
• Some points of difference more specific or more
  recent rule usually applies.
• For the CD Treatment providers, in most cases the
  rules of 42 CFR Part 2 are more stringent
• In several cases HIPAA wins.

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Do These Laws Apply to Drug Court
Practitioners?How Do We Know They Apply?
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Is the Drug Court Program a Treatment Program for
the Purposes of the Confidentiality Regulations
and Why?
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General Rule of Disclosure

• Treatment Programs may only release information
  or records that will directly or indirectly
  identify a drug court participant as a substance
  abuser or treatment patient
• With a knowing and written consent from the
  participant, AND
• Nine limited exceptions

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How do You Obtain Written Consent from Your
Participants?
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Elements of a Consent

• Name of person or organization that may make the
  disclosure
• Name or title of person (or organization) to whom
  disclosure may be made
• Participants name
• Purpose of the disclosure
• How much and what kind of information may be
  disclosed
• Participants signature
• Date on which the consent was signed
• Date, event, or condition upon which the consent
  will expire
• (Consent cannot be revoked unless in the adult
  terminates Drug Court)

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Consents

• A proper consent can authorize all parties
  involved in the drug court to share information
  necessary to monitor treatment progress and
  compliance.
• To be effective the consent form should be signed
  at the earliest possible time.
• Judge, coordinator, probation, etc., should get
  consent and fax it to treatment before 1st
  appointment.

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Requiring Consents

• HIPAA prohibits a program from conditioning
  treatment on a patient signing a consent, but
• The judge, probation/parole, child welfare can
  condition participation in the drug court program
  on the defendant signing the consent form.

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Satisfying 42 CFR and HIPAA

• HIPAA requires all consents to be revocable, but
• HIPAA also allows for the use of an
  administrative order for information disclosure.
  Therefore,
• Drug courts can pair their 42 CFR consent with a
  HIPAA administrative order and/or build HIPAA
  language into their consent

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In Drug Court, is the consent really valid?
Arent defendants being coerced into giving their
consents?
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Even without written consent, under what other
circumstances may you release information?
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Permitted disclosures -no consent

• Medical emergency
• Crimes on the premises
• Crimes against staff
• Administration / qualified service programs
  working with drug court
• Outside auditors, central registries and
  researchers
• No re-disclosures unless permitted

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Mandatory disclosure -no consent

• State child abuse laws
• A valid court order
• State laws relating to cause of death
• Duty to protect others, to warn of imminent,
  serious harm

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What if your court clerk answers the telephone,
Good morning. Drug Court.Is this a violation
of the confidentiality laws?
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Hypothetical

• Joe and Mary are in your drug court. They have
  different primary counselors at different
  agencies. At a pre-staffing meeting of treatment
  providers, the counselors share the following
  information Marys counselor reports that Mary
  is thrilled because she and Joe are going to try
  to have a baby. Joes counselor reports that Joe
  is excited that he and Mary are trying to have a
  baby, but that although theyve begun having
  unprotected sex, hes unwilling to share with
  Mary that hes HIV positive.

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Hypothetical

• What ethical issues are presented?
• What confidentiality issues are presented?
• What difference, if any, would it make if the
  whole team had been given this information?
• What difference, if any, would it make if Mary or
  Joe were underage?

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HIPAA

• HIPPA Study Guide and Test
• Course Protecting Information Privacy
• Employee ID Your Name
• Course Code 12345
• Web Site http//209.224.50.33
• Please submit results to Coordinator to keep on
  file