Ethics, Confidentiality, and HIPAA!

Disclaimer It is incumbent on all professionals to know their own ethical standards and the laws under which they practice. This presentation does not provide legal advice. See your attorney for legal advice.

Confidentiality and Ethics FundamentalsConsents Beyond Consents Rules, Ethics, and the Implications for the Drug Court team

Confidentiality and Ethics Introduction and Fundamentals

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.

42 U.S. Code 290dd 42 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 “I’m sorry I cannot acknowledge whether someone is or isn’t in our treatment program”.

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.”

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

Is your Drug Court a HIPAA Covered Entity? port/tools/decisionsupport/default.asp port/tools/decisionsupport/default.asp

HIPAA v. 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.

Do These Laws Apply to Drug Court Practitioners? How Do We Know They Apply?

Is the Drug Court Program a Treatment Program for the Purposes of the Confidentiality Regulations and Why?

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

Criminal Justice Referrals Section 2.35 A program may disclose information about a patient to those persons within the criminal justice system which have made participation in the program a condition of the disposition of any criminal proceeding against the patient or of the patient’s parole or other release from custody if:

Criminal Justice Referrals The disclosure is made only to those individuals within the criminal justice system who have a need for the information in connection with their duty to monitor the patient’s progress (e.g., a prosecuting attorney who is withholding charges…, a court granting pretrial release, probation or parole officers…) and

Criminal Justice Referrals The patient has signed a written consent meeting the requirements of section 2.31… Restrictions on redisclosure and use. A person who receives patient information under this section may redisclose and use it only to carry out that person’s official duties with regard to the patient’s conditional release or other action in connection with which the consent was given.

Consents How can a patient in AOD treatment consent to release information?

How do You Obtain Written Consent from Your Participants?

Elements of a Consent 1. Name of person or organization that may make the disclosure; 2. Name or title of person (or organization) to whom disclosure may be made; 3. Participant’s name; 4. Purpose of the disclosure; 5. How much and what kind of information may be disclosed; 6. Participant’s signature; 7. Date on which the consent was signed; 8. Date, event, or condition upon which the consent will expire (Consent cannot be revoked unless in the juvenile or family court setting)

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 1 st appointment.

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.

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

Does the Way That You Obtain Consent Vary if You are Dealing with Minors?

Beyond Consents Are there other circumstances in which information may be shared?

Even without written consent, under what other circumstances may information be released?

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

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

Practice How do these rules impact every day functions of my drug court?

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

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: Mary’s counselor reports that Mary is thrilled because she and Joe are going to try to have a baby. Joe’s counselor reports that Joe is excited that she and Mary are trying to have a baby, but that although they’ve begun having unprotected sex, he’s unwilling to share with Mary that he’s HIV positive.

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?

Case Law Florida Case involving drug court United States v. White, 902 F. Supp (D. Kansas 1995) – –Reading of law would be too broad if subjected judges and court officials to criminal sanctions if mentioned involvement of defendant in AOD treatment

General Ethics Everyone on the drug court team has both personal and professional ethical standards –At times, these can conflict –Word most associated with ethics: dilemma –The “rules” can change, or be different in different jurisdictions –Tarasoff ruling –Seek advice of state experts on ethical dilemmas

Ethical Issues Treatment Providers –Consent is permissive, not mandatory –Information released must be what is minimally necessary to meet the terms and conditions of the consent –Every staffing is a potential ethical dilemma –What to do with information about illegal activity? Sexual abuse? Personal health issues?

Defense Attorneys Unlike Treatment Providers, no federal statute has provided Defense Attorneys with a consent to set aside attorney-client privilege Participation in staffing could be similar to a Treatment Provider with a consent allowing only the release of information verifying client is in treatment

Prosecutors Duty to protect public safety Proverbial “rock and a hard place” if confronted with information they should act on ethically, but cannot act on legally

Judges Cannot outsource their decision to another person or group of persons—must be the final decision maker Cannot raise money

General Issues For everyone on the team, it’s necessary to maintain a professional relationship with the drug court professionals –Don’t lend money –Don’t co-sign loans –Don’t develop intimate relationships

Resources Confidentiality and Communication: A Guide to the Federal Drug and Alcohol Confidentiality Law and HIPAA (Legal Action Center)