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Background
The American Managed Behavioral Healthcare Association (AMBHA) represents nine managed behavioral healthcare organizations that provide insurance coverage for treatment of mental health and substance use disorders to over 100 million individuals. One of AMBHA's primary objectives is to support meaningful consumer rights and protections. One of the most important consumer protections is the confidentiality of a member's behavioral health treatment information. AMBHA member companies believe that treatment information should be protected and confidential. At the same time, AMBHA member companies recognize that in order to provide coordinated care and perform research there are times when it is necessary for MBHO's to have appropriate access to a member's treatment information. While recognizing the inherent importance of confidentiality, it is important that there be a balance between the protection of member privacy and the appropriate use of behavioral health information for treatment authorization, treatment planning, and quality management. As confidentiality legislation is considered AMBHA believes the following positions should be taken into consideration.
Statement
Information Disclosure
AMBHA recommends that MBHOs inform patients, providers, payors/customers, and employees about the MBHO's policy on confidentiality of member treatment information. AMBHA member companies recognize the importance of cultural competency. Consumers should be informed in a language they can understand. In addition to making information available, MBHOs should work with payors/customers to ensure that confidentiality policy information is appropriately disseminated.
Penalties for Illegal Disclosure of Information
AMBHA recommends that penalties be imposed on someone who illegally discloses an individual's medical record or treatment information. Penalties should be proportionate to the offenses. Legislation should distinguish between violations that are inadvertent and those that are intentional. The professional license of someone who willfully and knowingly violates the law should be restricted or revoked. Each organization should be responsible for training its staff about the confidentiality laws and should make sure that staff is aware of the penalties that will be imposed if the law is breached.
Authorization Upon Enrollment
AMBHA recommends that consent be obtained for the use of patient information for the purposes of treatment, payment, and other health care operations at the time of health plan enrollment, and periodically thereafter (e.g., every 12 months) (See section entitled Access to Patient Identifiable Information). If a patient chooses not to sign the consent form there should be, as an ultimate option, the ability to recommend to the health plan that the patient be disenrolled from the health plan.
Right to Inspect, Copy and Amend
AMBHA recommends that upon request, and in accordance with state law, a patient or member may be given the opportunity to inspect, copy, and request amendments to his/her medical record or treatment information. If the patient wants to have the record amended, it should be done through an addendum while retaining the original part in the record.
Access to Patient Identifiable Information
In addition to the traditional functions of utilization review, today's MBHOs are involved in research, preventive health and early identification initiatives. All of these activities are of great benefit to public health and help provide patients with continuous care. AMBHA recommends that the consent form that patients sign upon enrollment be for health care operations (i.e. health promotion and prevention, risk assessment/case management, disease management, utilization and care management, health plan reviews, treatment record reviews, and MBHO management functions). Access to this information should be limited to those individuals who need access to this information in order to accomplish one of the aforementioned tasks. Furthermore, disclosure of information should be limited to the minimum amount of information necessary to accomplish the purpose for which the information is used.
Psychotherapy Notes Should Be Considered Separate From The Medical Record
AMBHA recommends that detailed raw data contained in psychotherapy notes not be considered part of the medical record for purposes of disclosure. However, clinical assessment and treatment notes that include documentation of diagnosis, mental status, psychiatric history, treatment goals and objectives, treatment progress (e.g. course of symptoms or functioning), medication prescription and monitoring, the modalities and frequencies of treatment being offered, summary and progress notes recorded incidental to a psychotherapy session or to any other treatment activity undertaken by a health care professional on behalf of the individual who is the subject of such notes should be a part of the patient's medical record.
Uniform Confidentiality Standard
AMBHA recommends that federal legislation be strong enough so that it can be a ceiling, rather than a floor, for confidentiality standards. AMBHA believes that one uniform federal standard in an area as complex as confidentiality of patient medical records is critical to ensure consistency across the nation. In addition, having to comply with many separate state confidentiality laws and a federal law unnecessarily increases administrative costs and reduces financial resources for direct healthcare.
July 28, 1999 |
